BANCROFT 
LIBRARY 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


MORMON 


A    LETTER 


THE  MASSACHUSETTS  MEMBERS  OF  CONGRESS 


ON 


PLURAL    MARRIAGE: 

Its  fSoralttg  anlr  3Lafofuhte*& 

BY 

A    CITIZEN    OF    MASSACHUSETTS. 


"  We  want  a  state  of  things  which  allows  every  man  the  largest  liberty  compatible  with 
the  liberty  of  every  other  man."  —  R.  W.  EMERSON,  in  Fortune  of  the  Republic. 

"  Our  churches  represent  only  ignorance,  bigotry,  and  tyranny,  when  they  deal  with 
human  nature."  —  ANDREW  JACKSON  DAVIS. 


BOSTON : 
JAMES     CAMPBELL. 

1882. 


ETHICS, 

PHILOSOPHICAL    AND     POLITICAL. 


'ercive  and  arbitrary  measures  can  never  make  a  man  moral,  or 
inspire  him  with  incentives  to  do  right.  Man's  normal  condition  is 
freedom.  ...  It  is  an  impertinence  to  thrust  one  man's  belief  upon 
another  for  his  direction.  The  passion  to  exercise  dominion  over  an- 

is  diabolical.  There  is  no  goodness  where  liberty  is  interfered 
with."  —  PROF.  ALEXANDER  WILDER. 

•thing  is  more  sacred  than  human  natural  rights.  No  crime  is 
more  heinous  than  their  violation.  The  Declaration  of  Independence 
asserted  them.  Revolutionary  heroes  suffered  and  died  to  protect  them 
from  invasion.  The  Constitution  was  ordained  and  established  to  secure 
them.  Faithless,  recreant  to  their  oaths  and  their  trusts,  are  public 
men  who  subordinate  the  prime  objects  of  the  Constitution  to  their  per- 
sonal or  denominational  religious  preferences.  Thereby  they  pervert 
justice,  retard  the  general  welfare,  and  abridge  the  blessings  of  liberty 
to  the  people  of  the  United  States  and  their  posterity."  —  A.  E  GILES. 

11  Wherever  the  flag  floats,  wherever  an  American  is  found  within  the 
jurisdiction  of  the  Republic,  are  those  fundamental  principles  of  liberty 
which  are  the  inheritance  of  the  race,  and  which,  for  greater  safety,  were 
enumerated  in  the  Federal  Constitution,  as  they  are  in  the  State  Consti- 
tutions. They  existed  long  before  these  written  declarations  of  the  public 
will,  and  will  doubtless  long  survive  them.  Our  ancestors  did  not  claim 
representation  in  the  British  Parliament  ;  but  they  did  claim  that  they 
carried  with  them  into  every  settlement,  however  distant  or  humble,  the 
rights  of  Englishmen,  and  to  those  they  made  good  their  title.  It  is  clear 
that,  in  like  manner,  every  American,  wherever  he  may  go  within  the 
limits  of  his  free  country,  carries  with  him  the  safeguards  of  American 
liberty.  Congress  cannot  erect  a  mere  despotism  in  Utah  any  more  than 
it  can  erect  one  in  New  York.  The  property,  the  liberty,  the  family 
relations  of  citizens,  cannot  lawfully  be  placed  at  the  mercy  of  a  board  of 
five  men  deriving  their  power  from  another  man,  in  one  place  or  the 
other."  — NEW  YORK  SUN,  March  29,  1882. 


MARRIAGE, 


MONOGAMY  AND  POLYGAMY 


THE    BASIS    OF    DIVINE    LAW,    OF    NATUKAL    LAW,    AND    OF 
CONSTITUTIONAL   LAW. 


A  1ST    OPEN    LETTEK 

TO  THE  MASSACHUSETTS  MEMBERS  OF  CONGRESS,  BY  ONE  OF  THEIR 

CONSTITUENTS,  WITH  OBSERVATIONS  ON  THE  OPINION 

OF  THE   SUPREME  COURT  IN 

Reynolds  vs.  United  States,  98  U.  S.  Supreme  Court  Reports. 

BY 

A  CITIZEN   OF   MASSACHUSETTS. 


3&eltgtoits  JFmtiam,  not  Persecution,  solbes  tije  fHormon 

JUSTICE  vs.  INTOLERANCE. 

"And  there  arose  on  that  day  a  great  persecution  against  the  church  which  was 
in  Jerusalem."  — ACTS  viii.  1. 
"  The  blood  of  the  martyrs  is  the  seed  of  the  church."  — TERTULLIAN. 


BOSTON : 

JAMES     CAMPBELL. 

1882. 


Entered,  according  to  Act  of  Congress,  in  the  year  1882, 

BY  JAMES  H.  HART, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


BANCROFT 
UBRAJJf 


PBEFATOEY. 


UNTOWARD  circumstances  have  prevented  the  publication  of  this 
letter,  which  was  written  prior  to  the  passage  in  Congress  of  the 
so-called  Edmunds  Bill,  until  the  present  time.  Believing  that  in 
a  republic  only  fair  dealing  —  not  oppression  —  can  promote  gen- 
eral peace,  prosperity,  and  happiness,  the  writer,  who  has  hitherto 
voted  with  the  Republican  party,  views  with  abhorrence  its  pro- 
posed unjust  and  tortuous  legislation  in  respect  to  the  Mormons, 
and  hopes  that  certain  considerations  in  this  letter,  though  late, 
are  yet  not  too  late  to  be  of  service  in  solving  the  Mormon 
problem. 

APRIL  6,  1882. 


CONTENTS. 


LETTER     9 

PART  I. 

MONOGAMY  AND  POLYGAMY  ON  BASIS  OF  DIVINE  LAW  AND  OF 
NATURAL  LAW .  .9 

PART   II. 

MARRIAGE,  MONOGAMIC  AND  POLYGAMIC,  ON  BASIS  OF  CONSTI- 
TUTIONAL LAW.  SUPREME  COURT'S  OPINION  IN  REYNOLDS 
vs.  UNITED  STATES  EXAMINED  .  .  (.  .  .  .35 

PART   III. 

APPENDIX. 

I.     CITATIONS  JUSTIFYING  POLYGAMY 64 

II.     DR.  FRANKLIN'S  APOLOGUE,  OR  LESSON  OF  RELIGIOUS  TOL- 
ERATION        66 

III.  LAWS    OF   VIRGINIA,   OCTOBER,   1785,    K)TH    OF    COMMON- 

WEALTH,   CAP.    XXXIV.     AN    ACT    FOR   ESTABLISHING 
RELIGIOUS  FREEDOM 67 

IV.  TEXT  OF  so  MUCH  OF  CHIEF  JUSTICE  WAITE'S  OPINION  AS 

RELATES    TO    THE    DEFENCE    OF    RELIGIOUS    BELIEF    OR 
DUTY 69 


TABLE   OF   CERTAIN  MATTERS   HEREIN. 


PAGE 

CONSTITUTIONAL  ARGUMENT 35 

CRIME,  NATURE  OF 31 

DIVINE  LAW  OF  MARRIAGE  ) 

>  BY  REV.  DR.  MADAN   .        .        .    16-20 
DIVINE  LAW  OF  POLYGAMY  > 

MARRIAGE  MADE  A  SACRAMENT 18 

MARRIAGES,  PLURAL .  27 

MONOGAMY,  LORD  BOLINGBROKE  ON .  21 

MORMONS,  CAPT.  CODMAN  ON 12 

MORMONS,  MEDICAL  PROFESSOR  ON        .        .        .        .        .        .26 

MORMONS,  LETTER  FROM  ONE 26 

POLYGAMY,  CALCUTTA  MISSIONARY  CONFERENCE  ON    .        .        .24 

POLYGAMY  AND  CONCUBINAGE 19 

POLYGAMY,  REV.  D.  O.  ALLEN  ON 23 

POLYGAMY,  A  BAPTIST  MINISTER  ON         .     *   .        .        .        .  24 
POLYGAMY,  LORD  BOLINGBROKE  ON        .        .                 .        .        .21 

POLYGAMY,  REV.  DR.  MADAN  ON 16 

POLYGAMY,  A  MORMON  ON 26 

POLYGAMY,  OPINIONS  AS  TO 64 

POLYGAMY,  WHETHER  A  CRIME 17 

RESPONSIBILITY,  REV.  DR.  WAYLAND  ON  .        .        .        .        .  33 

RIGHTS,  HUMAN,  NATURE  OF 29 

RIGHTS,  HUMAN,  REV.  DR.  HOPKINS  ON 30 

RIGHTS,  HUMAN,  REV.  DR    WAYLAND  ON 30 

SUPREME  COURT'S  OPINION  EXAMINED 35 

SUPREME  COURT'S  OPINION,  TEXT  OF 69 

TOLERATION,  ROGER  WILLIAMS  ON 33 

TOLERATION,  DR.  FRANKLIN  ON 66 


LETTER. 


PART    I. 


To  THE  HONORABLE  HENRY  L.  DAWES,  GEORGE  F.  HOAR, 
WILLIAM  W.  CRAPO,  BENJAMIN  W..  HARRIS,  AMBROSE 
A.  RANNEY,  LEOPOLD  MORSE,  SELWYN  Z.  BOWMAN,  EBEN 
F.  STONE,  WILLIAM  A.  RUSSELL,  JOHN  W.  CANDLER, 
WILLIAM  W.  RICE,  AMASA  NORCROSS,  GEORGE  D.  ROB- 
INSON, Senators  and  Representatives  of  Massachusetts. 

GENTLEMEN,  —  To  you  in  the  Congress  of  the  United 
States,  representing  Massachusetts,  in  which  State  I  am  a 
voter,  and  therefore  one  of  your  constituents,  I  desire  to 
express  some  thoughts  on  the  existing  so-called  Mormon 
problem.  I  address  you  in  this  open  letter,  rather  than  in 
a  private  one,  hoping  thereby  to  reach,  besides  your  own, 
other  candid  and  intelligent  minds.  Judging  from  items  in 
newspapers  and  somewhat  irritating  articles  in  religious  jour- 
nals, one  might  at  first  glance  infer  that  the  whole  nation 
was  inflamed,  with  good  reason,  against  the  Mormons.  But 
closer  observation  has  led  me  to  think  that  the  excitement 
is  a  manufactured  one  ;  kindled  and  kept  alive  in  the  cities 
and  larger  towns,  mostly  by  ministers,  priests,  and  zealous 
members  of  sectarian  churches.  They  denounce  polygamy, 
a  social  and  religious  institution  of  the  Mormons,  as  a 
"crime,"  an  "evil,"  an  "abomination,"  a  "stigma,"  and  use 
many  other  strong  epithets  and  appellatives  to  express  their 
detestation  of  the  Latter-Day  Saints  and  their  peculiar  mar- 
riage institution.  But  I  have  not  yet  seen  any  clear  and 
candid  arguments  against  the  Mormons,  or  their  polygamy, 
that  justify  the  censures  so  profusely  and  ministerially  show- 
ered upon  them.  Epithets,  used  as  weapons  of  offence,  dis- 


10 

close,  unconsciously  to  themselves,  the  real  character  of  those 
who  utter  them.  They  may  be  scandalous,  leaping  like 
demons  from  perturbed  and  angry  passions,  or  they  may  be 
truthful  and  angelic  in  their  origin,  emitted  from  wisdom's 
sphere.  A  lavish  use  of  opprobrious  appellatives  as  surely, 
and  sometimes  more  deeply  injures  him  who  utters  them, 
than  they  harm  the  object  to  which  they  are  applied.  "That 
which  proceedeth  out  of  the  mouth,  this  defileth  the  man," 
said  the  great  Teacher  of  morals  and  religion,  to  the  Phari- 
sees and  Scribes  of  his  day.  With  these  reflections  there 
also  comes  to  my  mind  the  remark  of  an  eminent  living 
American,  that  "  Ministers,  as  a  rule,  know  but  little  of 
public  affairs,  and  they  always  account  for  the  actions  of 
people  they  do  not  agree  with,  by  attributing  to  them  the 
lowest  and  basest  motives.  This,"  said  he>  "  is  the  fault  of 
the  pulpit,  always  has  been,  and  probably  always  will  be." 
Believing  that  the  existing  and  the  prospective  hostile  legis- 
lation against  the  Mormons  is  unconstitutional  and  unjust, 
that  it  is  un-American  and  persecutive,  I  respectfully  and 
earnestly  implore  you  representing  Massachusetts,  where 

"  Freedom's  battle  once  begun, 
Bequeathed  by  bleeding  sire  to  son, 
Though  baffled  oft,  is  ever  won,"  — 

to  heartily  help  those  Mormons  now  struggling  against  great 
odds,  for  their  own  civil  and  religious  liberty ;  help  them,  I 
urge,  because  thereby  you  help  to  maintain  and  defend  the 
American,  the  natural,  the  human  right  to  the  free  exercise 
of  religion  throughout  the  United  States.  Their  cause  is 
that  of  religious  freedom.  Whoever  hesitates  now  in  the 
battle,  thereby  shows  that  he  does  not  understand  the  ques- 
tion in  issue,  or  does  not  appreciate  its  importance.  No 
welcome  ever  awaited  the  advent  of  any  Christian  sect  into 
the  world.  Each  and  every  one  has  been  derided,  or  oppressed 
and  persecuted,  not  so  much  by  non-religionists,  as  by  other 
sects  of  professing  Christians,  chiefly  by  their  priests  and 
officers.  As  now  of  Utah,  so  of  the  home  of  the  Founder  of 


11 

Christianity,  it  was  doubtingly  asked,  "  Can  any  good  thing 
come  out  of  Nazareth?"  Roman  Catholics  persecuted  Prot- 
estants, and  the  different  sects  of  Protestants  have  perse- 
cuted each  other,  and  attempted  to  strangle  each  successive 
sect  at  its  birth.  Driven  by  oppression  from  their  native 
land  to  the  stern  and  rock-bound  coast  of  New  England,  not 
even  through  suffering  brought  to  a  perception  of  toleration 
and  soul-liberty,  the  Puritan  Congregationalist  persecuted 
the  Quakers  and  the  Baptists.  At  a  later  day,  as  the  Univer- 
salists,  the  Shakers,  the  Methodists,  and  the  Unitarians  de- 
nominationalized,  so  each  sect  received  its  baptism  of  abuse, 
misrepresentation,  or  persecution,  from  the  elder  members  of 
the  Christian  household  of  faith. 

Not  thus  was  it  in  the  better  days  of  certain  pagan  reli- 
gions. The  Greeks,  besides  welcoming  many  known  gods, 
inscribed  an  altar  "  to  the  unknown  god."  The  Romans 
built  the  Pantheon,  sacred  to  many  gods.  Thereby  they 
manifested  not  only  toleration,  but  mutual  respect  for  one 
another's  religious  beliefs.  Directly  contrary  to  brotherhood, 
sadly  intolerant  has  been  the  Christian  religion,  as  adminis- 
tered by  its  popes,  its  bishops,  its  priests,  ministers,  and 
preachers.  Dungeons  and  gibbets,  stakes,  shackles,  and 
flames,  fines,  imprisonments,  and  proscriptions,  stand  out 
vividly  distinct  upon  its  history.  Hildreth  the  historian 
says,  that  "  horror  of  toleration  is  an  inherent  and  essential 

*/       * 

characteristic  of  every  theocracy."  Theocracy  is  the  oppo- 
site of  democracy.  The  author  of  "  The  Natural  History  of 
Fanaticism"  mentions  "enthusiasm  inflamed  by  hatred"  as 
the  cause  of  this  intolerance ;  but  Rev.  Dr.  Francis  Wayland, 
formerly  President  of  Brown  University  in  Providence,  R.I., 
in  his  "  Limitations  of  Human  Responsibility,"  ascribes  this 
" atrocious  wickedness"  for  so  he  designates  it,  to  mistake  on 
the  part  of  the  persecutors  as  to  the  limits  of  their  personal 
responsibility.  Are  not  these  intimations  from  wise  and 
devout  Christians  as  Dr.  Wayland  and  Rev.  Isaac  Taylor 
were  known  to  be,  sufficient  to  induce  the  ministers,  editors 
of  religious  papers,  and  other  church-members  now  actively 


12 

instigating  animosities,  pains,  and  penalties  against  the  Mor- 
mons, to  consider,  to  reflect  whether  the  fault  may  be  —  not 
in  the  Mormons,  but  in  themselves,  that  they  are  persecutors? 
Will  not  you,  honored  Senators  and  Representatives  of 
Massachusetts,  consider  whether  the  territory  of  the  United 
States,  extending  from  the  Atlantic  to  the  Pacific,  from  the 
frigid  to  the  burning  zone,  may  not  be  vast  enough  to  con- 
tain, and  the  Constitution  of  the  United  States  wisely  inter- 
preted (as  Thomas  Jefferson,  James  Madison,  or  Benjamin 
Franklin  would  have  interpreted  it)  broad  enough  to  secure 
justice  and  the  blessings  of  civil  and  religious  liberty  not 
only  for  all  Christians  (the  Mormons  claim  to  be  Christians), 
but  for  a  great  multitude  which  no  man  can  number  out  of 
all  tribes,  peoples,  and  tongues,  to  dwell  together  in  peace, 
provided  that  they  do  justice,  and  infringe  not  on  one 
another's  equal  rights? 

In  considering  the  Mormon  problem,  it  should  be  known 
that  many  intelligent  and  unprejudiced  persons  who  have 
visited  and  dwelt  among  the  Mormons,  for  the  special  pur- 
pose of  observing  their  social  and  religious  institutions,  their 
morals,  industries,  habits,  and  manner  of  life,  have  published 
the  results  of  their  observations,  and  their  testimony  is 
before  the  world.  Much  evidence  might  be  given,  but  let 
that  of  one  unusually  intelligent  and  truthful  witness  here 
suffice  as  a  fair  sample  of  more  that  might  be  given.  Capt. 
John  Codman,  widely  known  in  Boston  and  New  York  as  a 
traveller  and  a  man  of  intelligence,  independence,  and 
integrity,  in  the  small  volume  entitled  "  The  Mormon  Coun- 
try," which  he  published  some  few  years  since,  thus  speaks  of 
them  and  their  religion :  — 

11 1  don't  believe  in  their  revelations,  and  God  forbid  that  I  should  be 
understood  as  attempting  to  justify  polygamy.  But  for  all  that,  if  I 
knew  that  the  press,  supposing  it  to  notice  this  little  book,  would  abuse 
me  unmercifully,  and  if  the  '  forty  thousand  parson  power '  of  all  the 
pulpits  should  come  down  with  its  anathemas,  I  will  say  this  :  In  all  my 
voyages  and  travels  about  the  world  I  never  before  passed  three  months 
in  a  community  more  industrious,  honest  in  dealing  among  themselves 
and  with  others,  quiet,  inoffensive,  loyal  to  government,  temperate, 


13 

virtuous,  and  religious,  than  these  Mormons.  With  all  its  impositions 
and  absurdities,  a  religion  which  will  produce  results  like  these  must  have 
in  it  of  good  —  something.  Yes,  a  great  deal." 

Other  travellers  thither  have  given  like  testimony  of  the 
excellent  moral  habits  and  condition  of  the  people.  It  has 
been  said  again  and  again,  that  among  the  Mormons  there 
are  no  thefts,  no  bad  debts,  no  insolvencies ;  no  gambling, 
idleness,  nor  divorce  ;  no  adultery,  seduction,  and  abandon- 
ment; no  foeticide,  infanticide,  nor  prostitution.  "A  good 
tree,"  said  the  divine  Author  of  Christianity,  "  cannot  bring 
forth  evil  fruit,  neither  can  a  corrupt  tree  bring  forth  good 
fruit."  "  Therefore  by  their  fruits  ye  shall  know  them." 
With  this  rule  of  Jesus  for  a  criterion,  no  unprejudiced 
person  can  truthfully  deny  the  goodness  of  the  Mormon 
trees,  or  institutions  which  annually  produce  harvests  of  the 
good  fruits  mentioned  by  Capt.  Codman  and  other  travellers. 

But  it  is  said  that  polygamy  is  an  "  iniquity,"  "  a  mon- 
strous evil,"  and  "  a  stigma."  Chancellor  Howard  Crosby, 
D.D.,  LL.D.,  in  "  The  Independent "  of  March  10, 1881,  recom- 
mended that  "Utah  should  be  dynamited.  It  is  a  stench- 
heap,"  said  he,  "and  needs  a  brimstone  cure."  Was  it  a 
spirit  from  beneath,  or  above,  that  uttered  such  invectives, 
and  animated  him  in  giving  such  counsels?  Jesus  turned 
and  rebuked  James  and  John  when  they  proposed  to  bid  fire 
to  come  down  from  heaven  and  consume  certain  Samaritans, 
saying,  "  Ye  know  not  of  what  manner  of  spirit  ye  are  of."  l 
Having  been  reared  and  educated  amid  evangelic  influ- 

1  At  a  recent  meeting  in  New  York  to  protest  against  Russian  persecution 
of  the  Jews,  many  of  whom  are  polygamists,  it  is  specially  interesting  to 
learn  that  Rev.  Dr.  Howard  Crosby  said,  "It  was  a  most  marvellous  thing 
that  religious  hatred  was  the  most  diabolical  thing  on  the  face  of  the  earth." 
Would  that  he  and  his  fellow-religionists  would  be  no  less  tolerant  to 
Mormons  than  to  the  Jews  ;  and  that  the  Evangelical  Alliance  of  the  United 
States  would  remonstrate  against  the  persecution  of  the  Mormons  for  con- 
science' sake,  as  it  has  against  that  of  the  Jews,  and  pray  the  God  of  Abraham 
and  Isaac  and  Jacob  (all  of  whom  were  polygamists)  that  he  will  graciously 
so  incline  the  hearts  of  the  President,  Senators,  and  Representatives  of  the 
United  States,  and  all  who  make,  interpret,  and  execute  laws,  that  they  may 
be  restrained  from  imposing  disabilities  and  oppressive  restrictions  upon  the 
Mormons  on  account  of  their  religious  belief. 


14 

ences  in  New  England,  I  naturally  imbibed  its  religious  and 
social  opinions.  I  was  taught,  and  believed,  that  monogamic 
marriage  was  the  only  Christian  and  the  only  proper  mar- 
riage ;  that  polygamy  was  unchristian  and  barbarous.  As  I 
had  not  carefully  examined  into  the  subject,  by  thoughtful 
study,  or  by  travel  and  observation  of  polygamy  where  it 
existed,  my  opinions  in  respect  to  it  were,  of  course,  mere 
pre-judgments.  They  were  judgments  formed  before  knowl- 
edge of  it  had  been  acquired.  In  other  words,  they  were 
prejudices.  Thus  I  was  prepossessed  (as  probably  a  large 
part  of  the  American  people  are  from  like  influences)  in 
favor  of  monogamic  marriage,  and  prejudiced  against  polyga- 
my. Not  so  strong,  however,  was  my  prejudice  as  to  call 
polygamy  "odious;"  certainly  my  taste  and  my  judgment 
would  have  restrained  me  from  designating  it  as  a  "  stench- 
heap."  But  when,  within  the  last  few  weeks,  the  persistent, 
universal,  and  vigorous  efforts  of  ministers,  priests,  and  church- 
people,  to  instigate  persecution  (which  is  a  cruel  and  deceit- 
ful way  of  uprooting  other  religions,  and  to  plant  their  own) 
against  the  Mormons  and  polygamy,  attracted  my  attention, 
I  resolved  to  rid  myself  of  my  pre-judgments  or  prejudices 
as  much  as  possible,  and  candidly,  without  bias,  to  examine 
the  Mormon  question.  Cicero  saj^s,  "  Vulgus  ex  veritate 
pauca,  ex  opinions  multa  cestimat."  I  would,  if  possible, 
learn  the  truth  of  Mormonism,  and  not  merely  reiterate  other 
persons'  opinions  about  it.  "  He  hears  but  half  who  hears 
one  party  only."  Accordingly  the  first  part  of  the  Mormon 
problem  for  me  to  solve,  was  not,  how  to  abolish  polygamy, 
but  whether  polygamy  is  an  "evil,"  an  "abomination," 'a 
"  stigma,"  and  a  "  stench-heap,"  as  is  charged  upon  it  by 
zealous  ministers  of  Christian  sects. 

Accidentally  or  providentially,  not  many  months  since, 
while  in  the  library  of  Brown  University  in  Providence,  R.I., 
I  there  saw  a  book  entitled,  "  Thelypthora,  or  a  Treatise  on 
Female  Ruin,  in  its  Consequences,  Prevention,  and  Remedy, 
considered  on  the  basis  of  Divine  Law,  under  the  heads  of 
Marriage,  Whoredom,  and  Fornication,  Adultery,  Polygamy, 


15 

Divorce ;  with  many  other  incidental  matters,  including  an 
Examination  of  the  Principles  and  Tendencies  of  Statute 
George  II.,  c.  33,  commonly  called  the  Marriage  Act,"  by 
Rev.  Martin  Madan,  D.D.,  published  in  London,  178CL  The 
work  is  in  three  volumes ;  and  on  the  fly-leaf  of  its  second 
volume,  which  had  been  presented  to  the  library  by  Judge 
E.  R.  Potter,  there  was  written  in  his  handwriting  and  over 
his  signature,  as  follows :  viz.,  "  I  wish  the  subject  could  be 
ventilated  anew.  Upon  these  matters  the  clergy  seem  to  act 
like  the  goose  who  hid  her  head  in  the  wall.  —  E.  R.  POTTER." 

Now,  as  J  not  long  ago  learned  from  certain  ministers  who 
are  quite  enthusiastic  in  the  crusade  against  the  Mormons,1 
and  are  equally  zealous  in  their  opposition  to  legislative 
divorce  except  for  one  cause,  that  they  had  never  seen 
Dr.  Madan's  book  (and  they  asked  me  for  information 
respecting  it  and  its  author),  it  is  possible,  as  the  book  is 
a  somewhat  scarce  one  in  the  United  States,  that  other  min- 
isters and  professional  religious  guides  may  not  have  studied 
it,  and  that  your  readings  of  it  may  not  be  fresh  in  your 
memories :  I  desire,  therefore,  herein  to  give  some  extracts 
from  it,  to  show  some  of  the  opinions  and  arguments  of  a 
very  learned,  candid,  and  courageous  minister,  —  one  who 
had  carefully  studied  his  subject,,  and  had  arrived  at  con- 
clusions different  from  those  hitherto  expressed  in  American 
religious  journals.  Perhaps  a  consideration  of  such  extracts 
may  serve  to  open  the  door  to  the  ventilation  wished  for  by 
Judge  Potter. 

Dr.  Madan  was  chaplain  of  Lock  Hospital  and  Asylum,  — 
an  institution  founded  1747  by  Rev.  Thomas  Scott,  the  bibli- 
cal commentator,  for  the  cure  and  reclamation  of  profligate 
persons,  —  and  had,  therefore,  exceptionally  good  and  large 
opportunities  of  learning  from  its  inmates,  the  causes  of  their 

1  I  have  been  credibly  informed  that  many  ministers  in  New  England 
obtain  the  signatures  of  their  Sunday-school  scholars  to  petitions  to  Congress 
for  hostile  legislation  against  the  Mormons.  T\vo  religious  newspapers, 
edited  by  ministers,  recently  refused  to  me  to  publish  articles  asking  toleration 
for  the  Mormons,  their  editors  intimating  that  they  felt  they  could  not  afford 
to. 


16 

fall.  He  was  a  brother  of  Rev.  Dr.  Spencer  Madan,  Bishop 
of  Bristol  and  Peterborough,  arid  was  somewhat  short  of 
sixty  years  of  age  when  he  published  his  book.  As  I  intend 
to  give*  only,  as  it  were,  a  clew  to  his  general  views  and  argu- 
ments, my  extracts  from  his  work  must  be  few,  short,  and 
far-between.  He  writes :  — 

"  The  institution  of  marriage  may  be  found  in  Gen.  i.  28,  '  Be  fruit- 
ful, and  multiply,  and  replenish  the  earth,'  but  the  essence  of  it  is  in 
Gen.  ii.  24:  l  Et  ad  hcerebit  in  uxore  sua,  et  erunt  in  carnem  unam.' 
Our  translation,  shall  cleave  to  his  wife,  does  not  convey  the  idea  of  the 
Hebrew  original.  This  is  the  one  simple,  divine  ordinance,  and  the  obli 
gation  resulting  fiom  it  is  indissoluble.  Wherefore,  saith  Christ,  '  what 
God  hath  joined  together,  let  not  man  put  asunder.'  The  same  thing  is 
expressed  in  Deut.  "xxii.  29,  *  She  shall  be  his  woman,'  or  wife  as  we  call 
it  (sa  femme,  Fr.),  because  he  hath  humbled  her,  he  may  not  put  her 
away,  all  his  days.  .  .  .  (Vol.  ii.,  p.  136.) 

"By  polygamy  I  mean  the  having  more  than  one  wife  at  a  time.  It 
was  this  which  was  allowed  of  God,  consequently  practised  by  his  people 
(Deut.  xxii.  29,  19;  Exod.  xxi.  10)."  (Vol.  i.,  p.  75.) 

From  p.  269  to  p.  273  of  "  Thelypthora,"  Dr.  Madan  gives 
a  paradigm  of  the  passages" of  the  Old  Testament  recognizing 
and  allowing  polygamy,  arid  on  p.  273  remarks,  "  The  con- 
clusion of  all  which  appears  to  be,  that  either  we  do  not 
worship  the  same  God  which  the  Jews  did,  or  the  God  we 
worship,  does  not  disallow  or  disapprove  polygamy. 

"  The  true  meaning  of  the  word  *  adultery  '  in  Exod.  xx.  14,  —  Thou 
shall  not  commit  adultery,  —  is  to  denote  defilement  of  a  betrothed  or  mar- 
ried woman."  (Vol.  i.,  p.  61.)  "Nor  is  it  used  but  where  a  married 
woman  is  concerned."  (pp.  281,  383,  note  2;  vol.  ii.,  3,  219.) 

"So  far  from  Jesus  Christ  ever  condemning  polygamy,  which,  as  a 
new  law-giver,  he  is  supposed  to  have  done,  he  never  mentioned  it 
during  the  whole  course  of  his  ministry,  but  left  it,  as  he  did  all  other 
moral  actions  of  men,  upon  the  footing  of  that  law  under  which  he  was 
made,  and  to  which  for  us  men,  and  for  our  salvation,  he  became  subject 
and  obedient  unto  death."  (pp.  287,  288.) 

"  Josephus  says  it  was  the  custom  of  the  Jews  to  live  with  a  plurality 
of  wives,  —  the  custom  of  their  country,  derived  from  their  fathers." 
(p.  392.) 

"A  divorce  which  declares  the  nullity  of  a  polygamous  marriage  is 


17 

not  only  without  all  foundation  from  God's  word,  but  is  an  arraignment 
of  the  wisdom  and  holiness  of  God."  (Vol.  ii.,  p.  13.) 

"Were  a  missionary  to  go  into  those  countries  where  polygamy  is 
allowed,  and  open  his  commission  with  declaring,  that  though  polygamy 
was  allowed  under  the  law,  yet  Christ  forbade  it  under  the  gospel,  he 
would  go  with  a  lie  in  his  right  hand."  (Vol  ii.,  p.  81.) 

u  We  may  boast  of  our  monogamy,  and  condemn  polygamy:  but  there 
is  not  a  nation  under  heaven  where  polygamy  is  more  openly  practised 
than  in  this  Christian  country ;  for,  though  a  man  can  marry  but  one  at 
a  time,  he  may  have  as  great  a  variety  of  women  as  he  pleases  without 
ever  marrying  at  all.  This  is  so  inveterated  by  custom,  that  those  laws 
of  Heaven  which  were  made  to  prevent  it,  seem  to  be  totally  forgotten." 
(Vol.  ii.,p.  85.) 

'  *  How  polygamy  became  reprobated  in  the  Christian  Church  is  easily 
accounted  for,  when  we  consider  how  early  the  reprobation  of  marriage 
itself  began  to  appear.  The  Gnostics  condemned  marriage  in  the  most 
shocking  terms,  saying  it  was  of  the  Devil.  .  .  .  Better  people  soon  after 
condemned  marriage  as  unlawful  to  Christians,  and  this  under  a  wild 
notion  of  greater  purity  and  perfection  in  keeping  from  all  intercourse 
with  the  other  sex.  This  opinion  divided  itself  into  many  sects,  and 
gave  great  trouble  to  the  Church,  before  it  was  discountenanced.  Still, 
second  marriages  were  held  infamous,  and  called  no  better  than  lawful 
whoredom.  Nay,  they  were  not  ashamed  to  write  that  a  man's  first  wife 
being  dead,  it  was  adultery,  and  not  marriage,  to  take  another.  Amidst 
all  this,  polygamy  must  necessarily  receive  the  severest  anathema." 
(Vol.  i.,  p.  275.) 

"  If  women,  taken  by  men  already  married,  were  not  lawful  wives  in 
God's  sight,  then  the  issue  must  be  illegitimate,  and  it  would  lead  even 
to  the  bastardizing  the  Messiah  himself.  It  is  sufficient  to  prove  one 
link  in  the  chain  of  Christ's  genealogy  from  David,  faulty,  to  defeat  all 
his  title  to  the  appellation  of  the  Son  of  David,  King  of  Israel.  .  .  .  For, 
Solomon  the  ancestor  of  Joseph,  and  Nathan  the  ancestor  of  Mary, 
through  whom  our  Lord's  line  runs  back  to  David,  being  the  children  of 
Bathsheba  (whom,  when  David  married,  he  had  also  other  wives  by  whom 
he  had  children),  must  fail  in  their  legitimacy."  (Vol.  ii.,  p.  15.) 

u  If  God's  word  be  the  criterion  of  right  and  wrong,  our  laws  have  no 
more  authority  to  say  that  a  man  shall  not  have  two  wives,  than  Popish 
laws  have  to  say  that  a  priest  shall  not  have  one."  (Vol.  ii.,  p.  69.) 

"  Our  notions  relative  to  the  commerce  of  the  sexes  are  by  far  more 
friendly  to  polygamy,  than  the  Turkish  system  of  polygamy  is.  A  Turk 
may  take  one  or  more  wives,  but  then  they  are  kept  in  his  harem  as  his 
inviolable  property;  no  eye  of  a  stranger  can  ever  behold  them;  and  they 
are  maintained  and  provided  for  as  liberally  as  the  man's  circumstances 
will  permit.  Whereas,  among  us,  a  man  may  take  as  many  women  as  he 


18 

can  seduce,  and  abandon  them  whenever  he  pleases;  they  can  claim  no 
property  in  him,  nor  he  in  them;  he  turns  them  out  upon  the  common 
either  to  starve  with  hunger,  or  rot  by  prostitution.  Had  we,  at  the 
Reformation,  adopted  the  law  from  Mount  Sinai,  instead  of  that  from 
the  Council  of  Trent,  relative  to  marriage,  such  things  could  not  exist." 
(Vol.  ii.,p.  84.) 

"  When  we  reflect  on  the  superstition  with  regard  to  marriage,  which 
has  so  long  reigned  in  the  Christian  Church,  and  is  so  much  interwoven 
with  our  laws,  we  may  fear  that  it  can  never  be  destroyed  without  de- 
stroying the  whole  fabric  of  the  laws  that  support  it."  (Vol.  ii.,  p.  102.) 

"  By  superstition,  I  mean  a  devotion  which  has  no  foundation  in  the 
revealed  will  of  God,  and  either  rests  in  the  imagination  of  the  party,  or 
owes  its  sanction  to  some  misinterpretation  or  ill-understanding  of  the 
revelation  itself."  (Vol.  ii.,  p.  100.) 

"It  is  a  superstition  which  condemns  polygamy,  and  persuades  men 
to  believe  that  our  Saviour  called  it  adultery."  (Vol.  ii.,  p.  151.) 

"  The  ambition  and  avarice  of  the  clergy  in  the  Middle  Ages  laid  the 
rest  of  the  world  under  contribution  in  the  business  of  marriage,  made  it 
into  a  sacrament,  obscured  the  real  essence  and  nature  of  it,  and  wrested 
it  out  of  the  hands  of  the  civil  power,  as  to  the  outward  and  public  recog- 
nition of  it,  to  secure  it  to  themselves :  after  which  a  man  and  woman 
could  not  marry  but  for  the  emolument  of  the  Church.  A  newly  married 
couple  were  not  suffered  to  live  together  for  a  given  time,  unless  they 
paid  the  church  for  a  dispensation.  A  man  was  not  allowed  Christian 
burial  unless  he  bequeathed  something  to  the  Church.  In  short,  a  man 
could  neither  come  into  the  world,  continue  in  it,  nor  go  out  of  it,  without 
being  laid  under  contribution  by  the  clergy."  (Alexander's  "History 
of  Women,"  vol.  ii.  p.  259;  quoted  in  "  Thelypthora,"  vol.  ii.,  p.  165.) 

"Whether  superstition  appear  in  the  shape  of  a  brazen  image  of  an 
old  man  at  Carthage,  receiving  infants  into  his  arms,  and  letting  them 
drop  into  a  pit  of  fire,  or  of  an  old  man  made  of  flesh  and  blood  at  Rome, 
commanding  people  to  renounce  the  evidence  of  their  outward  senses,  or 
of  a  primitive  father  (Jerome)  of  the  Christian  Church,  declaring  against 
marriage  as  unlawful  under  the  gospel,  and  that  all  the  second  marriages 
were  only  a  more  specious  and  decorous  kind  of  adultery,  or  of  grave  and 
learned  English  statesmen  enacting  a  law  to  put  asunder  whom  God  hath 
joined  together,  or  of  reverend  divines,  whether  Popish  or  Protestant, 
maintaining  that  certain  moral  actions,  such  as  polygamy,  which  God 
had  allowed,  and  in  some  cases  commanded  under  the  law,  are  sinful 
under  the  gospel,  superstition  is  still  the  minister  of  Satan,  who  is  the  god 
of  this  world."  (Vol.  ii.,  p.  183.) 

"  The  Council  of  Trent  decreed  that,  if  any  shall  say  that  matrimony 
is  not  one  of  the  seven  sacraments  instituted  by  Christ,  and  doth  not 
confer  grace,  *  let  him  be  accursed.1 '  (Vol.  ii.,  p.  238.) 


19 

"  As  churchmen  increased  in  power  and  wealth,  the  love  of  both  increased 
in  every  age,  and  marriage  was  entirely  taken,  as  it  were,  out  of  God's 
hands,  into  the  hands  of  churchmen;  the  Hebrew  scriptures  relative  to 
the  commerce  of  the  sexes  laid  out  of  the  case;  and  what  popes,  councils, 
synods,  and  human  laws  determined  to  be  marriage,  was  marriage;  what 
they  determined  to  be  whoredom  and  fornication,  was  so;  what  they  de- 
termined to  be  bastardy,  was  bastardy  ;^but  what  God  had  determined  to 
be,  or  not  to  be,  any  of  these,  signified  no  more  than  if  he  had  never  deter- 
mined any  thing  about,  the  matter."  (Vol.  iii.,  pp.  261,  262.) 

"  That  polygamy  and  concubinage  were  both  dispensations  of  God,  both 
modes  of  lawful  and  honorable  marriage,  is  a  proposition  as  clear  as  the 
Hebrew  scriptures  can  make  it.  That  polygamy  and  concubinary  con- 
tracts are  deemed  by  the  Christians  null  and  void,  and  stamped  with  the 
infamy  of  adultery  and  whoredom,  is  as  certain  as  that  the  canons  and 
decrees  of  the  Church  of  Rome  made  them  so.  The  consequences  of  the 
former  were  the  preservation  of  female  chastity,  and  the  prevention  of 
female  ruin.  The  consequences  of  the  latter  have  been  and  still  are  the 
destruction  of  thousands  of  both  sexes,  but  more  especially  of  the  female, 
in  this  world  and  the  next."  (Vol.  iii.,  pp.  278,  279.) 

"  Dr.  Alexander,  in  his  '  History  of  Women,'  vol.  ii.,  p.  236,  referring 
to  Deut.  xxii.,  28,  29,  asks,  'Was  it  possible  to  devise  a  law  that  more 
strongly  protected  female  chastity?  '  It  certainly  was  not  possible;  and 
the  abolition  of  this  law  is  equally  ruinous  to  the  female  sex,  and  an  in- 
sult to  God,  who  so  graciously  consulted  their  security  and  protection. 
This  is  best  accounted  for,  by  considering  that  our  present  system  of  law, 
with  respect  to  the  commerce  of  the  sexes,  has,  in  a  great  measure  been 
handed  down  to  us  from  the  Church  of  Rome,  — that  the  churchmen  thereof, 
informer  ages,  had  the  framing  and  fashioning  of  matters  as  they  pleased, 
— that,  as  all  marriage  was  forbidden  them,  they  took  special  care  to  make 
themselves  amends  by  keeping  those  laws  out  of  sight,  which,  had  they 
been  retained,  must  have  sadly  interrupted  their  monstrous  debaucheries, 
as  well  with  regard  to  virgins  as  married  women,  which  were  often  car- 
ried to  such  length  as  we  should  scarcely  credit,  were  we  not  assured  of 
them  by  the  most  authentic  records.  Had  the  law  of  Lev.  xx.  10  been 
retained,  the  churchmen  could  not  very  safely  have  defiled  other  men's 
wives ;  and,  as  they  could  not  take  any  woman  for  their  own,  the  law  of 
Exod.  xxii.  16,  and  Deut.  xxii.  28,  29,  could  not  possibly  be  obeyed,  there- 
fore it  was  expedient  for  them  to  leave  them  out  of  their  system.  They 
now,  from  long  disuse,  have  sunk  into  oblivion;  and  perhaps  there  are 
thousands  of  those  who  call  themselves  Christians,  who  do  not  recollect 
that  there  are  such  laws  as  these  in  the  Bible.  .  .  .  Well  might  our  blessed 
Lord  say,  *  that  which  is  highly  esteemed  among  men  is  an  abomination 
in  the  sight  of  God.'  "  (Vol.  ii.,  pp.  31-33.) 

"  After  all  the  rout  that  has  been  made  about  polygamy  and  concubinage 


20 

in  the  Christian  Church,  the  only  real  and  substantial  difference  between 
the  ancient  Jews  and  Christians  is  this:  The  former  took  a  plurality  of 
women  whom  they  maintained,  protected,  and  provided  for,  agreeably  to 
God's  word;  the  latter  take  a  plurality  of  women,  and  turn  them  out 
to  ruin  and  destruction,  not  only  against  God's  word,  but  against  every 
principle  of  justice  and  humanity.  Or,  in  other  words,  the  Jew  took  as 
many  as  he  could  maintain;  the  Christian  ruins  as  many  as  he  can  de- 
bauch." (Vol.  iii.,  p.  279.) 

"  The  grand  question  to  be  tried  is,  whether  a  system  filled  with  obli- 
gation and  responsibility  of  MEN  to  WOMEN,  and  WOMEN  to  MEN,  even  unto 
death  itself,  and  that  established  by  INFINITE  WISDOM,  is  not  better  cal- 
culated to  prevent  the  ruin  of  the  female  sex,  with  all  its  horrid  conse- 
quences, both  to  the  public  and  individuals,  than  a  system  of  human  con- 
trivance, where  neither  obligation  nor  responsibility,  either  of  MEN  to  WOMEN 
or  of  WOMEN  to  MEN,  in  instances  of  the  most  important  concern  to  BOTH, 
but  more  especially  to  the  weaker  sex."  (Vol.  ii.,  p.  1.) 

"  To  vindicate  the  lawfulness  of  polygamy,  is,  as  the  world  is  now 
constituted,  to  act  as  a  good  citizen  of  the  world,  by  vindicating  the 
natural  privileges  and  necessary  rights  of  mankind  ;  and  it  is  at  the 
same  time  to  act  as  a  sincere  believer  in  Divine  Revelation,  to  set  forth 
openly  and  without  disguise  that  heavenly  system  by  which  those  rights 
are  established  and  secured.  To  vindicate  also  that  universal  law,  which 
had  the  good  of  the  WHOLE  for  its  object ;  to  show  that  its  wisdom  and 
beneficence  are  too  vast  to  be  confined  to  a  single  people,  or  a  single 
period  of  particular  dispensation  ;  to  free  it  from  the  obscurities  which 
monks  and  priests  and  other  enthusiasts  and  fanatics  have  involved  it  in, 
to  the  distress  and  destruction  of  millions,  —  is  a  task  reserved  alone  for 
those  who,  for  the  sake  of  truth,- are  willing  to  sacrifice  their  ease  and 
reputation,  to  the  malevolence  of  ignorance  and  prejudice."  (Vol.  i.,  p. 
296.) 

u  I  have  written  *  Thelypthora  'pro  bono  publico,  for  the  public  good,  to 
check  the  overflowing  of  adultery  and  prostitution,  to  establish  the  means 
of  doing  this,  on  the  basis  of  divine  law,  to  set  forth  that  law  as  revealed 
in  the  Bible,  to  contend  for  its  wisdom,  holiness,  purity  and  justice." 
(Vol.  iii.,  p.  399.) 

"  In  1530,  June  10,  the  College  of  Bologna  determined  that  the  mar- 
riage law  in  the  book  of  Leviticus,  being  a  part  of  the  law  of  nations, 
as  well  as  the  law  of  Moses  and  of  God,  is  binding  on  the  whole  Christian 
Church  as  well  as  infidels,  and  therefore  gave  their  decision  against  the 
legality  of  Henry's  marriage  with  Catherine  of  Aragon."  (MUNSELL'S 
Every-day  Book  of  History  and  Chronology,  p.  220.) 

If  the  subject  of  marriage  in  its  monogamic  and  polygamic 
forms  is  to  be  ventilated  anew,  as  Judge  Potter  desired  it 


21 

might  be,  and  as  the  religious  persecution  now  commenced 
against  the  Mormons  makes  necessary  that  it  should  be, 
other  views  on  the  same  subject  than  those  of  clergymen 
alone,  ought  to  be  known :  I  will  therefore  here  transcribe 
some  of  the  sentiments  of  Lord  Bolingbroke,  that  eminent 
statesman  and  philosophical  essayist  of  the  seventeenth 
century,  to  whom  Pope  addressed  his  "  Essay  on  Man,"  - 

"  Awake,  my  St.  John  !  leave  all  meaner  things 
To  low  ambition  and  the  pride  of  kings.'* 

"  Polygamy  has  always  prevailed,  and  still  prevails  generally,  if  not 
universally,  as  a  reasonable  indulgence  to  mankind.  .  .  .  Polygamy 
was  allowed  by  the  Mosaical  law,  and  was  authorized  by  God  himself. 
.  .  .  The  prohibition  of  polygamy  is  not  only  a  prohibition  of  what 
Nature  permits  in  the  fullest  manner,  but  of  what  she  requires  for  the 
reparation  of  states  exhausted  by  wars,  by  plagues,  and  other  calamities. 
The  prohibition  is  absurd,  and  the  imposition  [of  monogamy]  arbitrary." 
(V.  BOLINGBROKE'S  Works,  pp.  160-163.) 

"The  imposition  [of  monogamy]  is  very  ancient,  —  as  ancient  in 
Greece  as  Cecrops;  and  if  it  was  the  most  perfect  state  [of  marriage,  as 
many  assert]  there  is  reason  for  wonder  how  the  most  perfect  kind 
came  to  be  established  by  an  uninspired  law-giver  among  the  nations, 
whilst  the  least  perfect  kind  [polygamy]  had  been  established  by  Moses, 
the  messenger  and  prophet  of  God,  among  his  chosen  people."  (pp.  163, 
164.) 

"  The  Athenians  decreed,  after  their  city  had  been  depopulated  by  war 
and  sickness,  that  every  citizen  might  have,  to  increase  the  number  of 
children,  a  second  wife.  .  .  .  Socrates  took  advantage  of  this  decree, 
which  set  aside  the  law  of  Cecrops  ;  and  he  despised  with  a  great  elevation 
of  mind  those  who  criticised  his  conduct,  and  threw  reproaches  against 
him.  This  famous  missionary  of  natural  religion  and  law  declared  by 
this  action,  that  polygamy  was  against  neither,  and  that  the  law  of 
Cecrops  had  forbid  what  they  allowed."  (p.  165,  quoted  from  DIOGENES 
LAERTIUS,  Vita  Socrates.) 

"  The  reasons  that  determined  the  law-givers  of  Greece  and  Rome  and 
some  few  other  states,  to  forbid  a  plurality  of  wives,  which  was  per- 
mitted in  almost  all  countries,  may  have  been  such  as  these:  Polygamy 
would  create  large  families  ;  and  large  families,  a  greater  expense  than 
could  be  borne  by  men  who  were  reduced  to  live  in  cities.  Monogamy 
was  a  sort  of  sumptuary  law,  because  men  were  not  permitted  to  marry 
more  women  than  they  were  able  to  maintain.  Another  reason,  DIONY- 
sius  HALICARNASSUS  (Lib.  ii.  24,  25  6)  speaks  with  great  encomium  of 


22 

a  law  that  Romulus  made,  by  an  entire  participation  of  all  his  possessions 
and  of  his  religious  rites.  These  sacred  nuptials  were  celebrated  by  a 
solemn  sacrifice,  and  the  eating  together  of  a  consecrated  barley-cake. 
The  effect  of  the  law  and  of  this  religious  ceremony  was  such,  that 
during  five  hundred  and  twenty  years  there  was  no  instance  of  a  divorce 
at  Rome  ;  not  that  there  was  any  prohibition  of  divorce,  as  some  have 
imagined.  Thus,  by  the  intervention  of  the  priesthood,  monogamy 
became  a  religious,  as  well  as  a  civil,  institution."  (pp.  166,  167.) 

"But  of  all  the  reasons  which  may  account  for  the  prevalence  of 
monogamic  marriages,  divorces  constitute  the  principal  and  most  effec- 
tual. With  them,  monogamy  may  be  thought  a  reasonable  institution ; 
without  them,  it  is  an  absurd,  unnatural,  and  cruel  institution.  It 
crosses  the  intention  of  nature  doubly,  as  it  stands  in  opposition  to  the 
most  effectual  means  of  multiplying  the  human  species,  and  as  it  forbids 
the  sole  expedient  by  which  this  evil  can  be  lessened  in  any  degree,  and 
the  intention  of  nature  can  be  in  many  cases  at  all  carried  on."  (pp. 
167,  168.) 

Prepossessions  are  preconceived  opinions  favorable  to  any 
special  matter  under  consideration.  An  opinion  is  not 
knowledge,  but  is  a  thought  between  knowledge  and  igno- 
rance. Prepossessions  in  respect  to  monogamic  marriage, 
are  thoughts  in  favor  of  it,  acquired  previously  to  knowledge 
or  examination  of  it.  Prejudices  are  judgments  against 
whatever  matter  may  be  under  consideration,  formed  prior 
to  any  certain  knowledge,  or  examination  of  that  matter. 
Prejudices  in  respect  to  polygamy,  are  unfavorable  opinions 
towards  it,  entertained  without  actual  knowledge  or  exam- 
ination of  it.  As  one's  ignorance  of  a  matter  is  dispelled 
before  the  light  of  knowledge  shed  upon  it,  his  enmity  sub- 
sides, and  candor  takes  its  place. 

"  The  seas  are  quiet  when  the  winds  give  o'er: 
So  calm  are  we  when  passions  are  no  more." 

We  read  that  Saul,  an  intense  religionist  and  conservator  of 
the  ancient  faith,  breathed  out  threatening  and  slaughter 
against  the  disciples  of  the  Lord,  and,  being  exceedingly 
mad,  persecuted  them  even  unto  foreign  cities.  But,  receiv- 
ing more  light  on  the  matter,  his  prejudices  subsided,  and  he 
became  one  of  their  warmest  friends. 

So  in  respect  to  polygamic  marriages.     It  has  sometimes 


23 

so  happened  that  very  intelligent  religious  men,  yes,  Con- 
gregationalists  and  Baptist  ministers,  brought  up  with  all 
the  prejudices  of  Americans  and  the  bluest  bigotry  of  New 
Englanders  against  polygamy,  upon  becoming  better  ac-^ 
quainted  with  it  in  lands  where  it  exists,  and  among  people 
who  practise  it,  have  discovered  excellences  and  advantages 
in  it,  that  they  had  never  previously  surmised,  and  for  the 
information  of  their  fellow-countrymen,  they  have  not  been 
afraid  to  say  so.  Honor  to  such  men  for  their  candor  and 
courage,  and  to  all  fearless  advocates  of  any  truth,  popular 
or  unpopular,  under  heaven  !  Rev.  David  O.  Allen,  mission- 
ary of  the  American  Board  of  Missions  for  twenty-five  years 
in  India,  in  his  book  entitled  "  India,  Ancient  and  Modern,'1 
published  in  Boston,  1856,  thus  speaks  of  polygamy:  — 

"  There  has  been  a  disposition  in  this  country  [i.  e.,  United  States]  to 
judge  of  polygamy  as  it  exists  among  Jews,  Mohammedans,  and  Hindoos, 
with  great  severity.  Now,  if  polygamy  was  not  morally  wrong,  if  the 
custom  even  had  the  Divine  approbation,  among  the  Jews  of  old,  ...  it 
is  not  intrinsically  and  morally  wrong  as  it  exists  among  the  Jews,  Mo- 
hammedans, and  Hindoos;  and,  if  not  wrong  among  them,  then  the  con- 
tinuance of  the  relation  after  they  become  Christians  cannot  be  morally 
wrong."  (p.  604.) 

"  Some  persons  in  this  country  [United  States]  appear  to  be  of 
the  opinion  that  polygamy,  being  contrary  to  the  Christian  dispensation, 
and  contrary,  as  they  think,  to  the  well-being  of  families,  must  be 
classed,  wherever  found,  with  theft,  adultery,  murder,  etc. ;  and  that 
people  in  any  country  who  have  entered  into  this  state,  must  have  as 
clearly  seen  and  known  that  they  were  doing  wrong,  as  if  they  had  been 
violating  any  of  the  Ten  Commandments.  But  such  were  not  the  views 
of  pious  Jews  in  ancient  time :  nor  are  such  the  views  of  Jews  in  modern 
times,  when  they  can  live  in  countries  where  they  can  follow  their  own 
usages  and  laws.  Indeed,  so  far  from  viewing  polygamy  as  morally 
wrong,  they  not  unfrequently  take  a  second  and  a  third  wife  with  much 
reluctance,  and  from  a  painful  sense  of  duty,  to  perpetuate  their  name, 
their  family,  and  their  inheritance.  .  .  .  Now,  what  shall  be  done  to 
such  persons  when  they  give  credible  evidence  of  personal  piety,  and  seek 
admission  into  the  Christian  Church  ?  .  .  .  My  opinion  is,  that  the 
general  practice  in  missions  in  such  cases  will  be  as  follows  ...  he 
will  be  permitted  to  retain  his  marital  connection  with  all  his  wives; 
whether  he  may  or  may  not  cohabit  with  his  different  wives,  will  be  left, 
I  believe,  entirely  to  him  and  to  them  according  to  their  views  of  duty." 
(pp.  553,  554.) 


24 

The  Calcutta  Missionary  Conference,  consisting  of  mission- 
aries of  the  different  societies,  which  probably  included  all 
denominations  except  Roman  Catholic,  .  .  .  were  unanimous 
in  the  following  opinions :  — 

"1.  It  is  in  accordance  with  the  spirit  of  the  Bible,  and  the  practice 
of  the  Protestant  Church,  to  consider  the  STATE  as  the  proper  fountain  of 
legislation  in  all  civil  questions  affecting  marriage  and  divorce." 

"2.  The  Bible,  being  the  true  standard  of  morals,  ought  to  be  con- 
sulted in  every  thing  which  it  contains  on  the  subjects  of  marriage  and 
divorce,  and  nothing  determined  contrary  to  its  general  principles." 

"  3.  Heathen  and  Mohammedan  marriages  and  divorces,  recognized  by 
the  laws  of  the  country,  are  to  be  held  valid." 

"  5.  If  a  convert,  becoming  a  Christian,  has  married  more  wives  than 
one  .  .  .  he  shall  be  permitted  to  keep  them  all. "  (pp.  601,  602.) 

"  Polygamy  is  practised  in  India  among  the  Hindoos,  the  Mohamme- 
dans, the  Zoroastrians,  and  the  Jews.  It  is  allowed  and  recognized  by 
the  Institutes  of  Menu,  by  the  Koran,  by  the  Zenda  Vesta,  and,  the  Jews 
believe,  by  their  Scriptures,  the  Old  Testament.  It  is  recognized  in  all 
the  courts  of  India,  native  and  English.  The  laws  of  the  British  Parlia- 
ment recognize  polygamy  among  all  these  classes,  where  the  marriage 
connection  has  been  formed  according  to  the  principles  of  their  religion, 
and  to  their  established  laws  and  usages.  The  marriage  of  a  Hindoo  or  a 
Mohammedan  with  his  second  or  third  wife  is  just  as  valid,  and  as  legally 
binding,  as  his  marriage  with  his  first  wife,  just  as  valid  as  any  Christian's 
in  the  Church  of  England  "  (p.  551.) 

In  1869  "The  History  and  Philosophy  of  Marriage,  or  Po- 
lygamy and  Monogamy  compared  by  a  Christian  Philanthro- 
pist," was  published  in  Boston,  and  another  edition  in  the 
year  1875.  The  author  of  it  —  he  is  a  Baptist  minister  —  says 
that  he  is  a  native  of  New  England,  was  brought  up  a  strict 
Puritan,  graduated  from  college  expecting  to  become  a  mis- 
sionary ;  but  his  health  broke  down,  and  he  went  to  India  in 
the  employ  of  a  Boston  house  there,  having  an  extensive  busi- 
ness. In  India  he  lived  many  years ;  and  since  then,  "  having 
seen  all  the  continents  of  the  globe,  and  many  islands  of  the 
sea,  and  having  observed  human  society  in  every  climate  and 
in  every  social  condition,  I  have  returned,"  he  says,  "  to  my 
native  land,  an  older  and  I  hope  a  wiser  man."  (p.  16.)  He 
says  he  has  investigated  the  whole  subject  of  marriage  for 


25 

many  years,  including  monogamy  and  polygamy,  and  has 
"  become  convinced  that  polygamy  is  not  always  an  immo- 
rality ;  that  if  the  prejudices  of  modern  Christians  are  op- 
posed to  the  social  system  which  their  ancient  brethren,  the 
earliest  saints  and  patriarchs,  practised  in  the  good  old  days 
of  Bible  truth  and  pastoral  simplicity,"  he  believes  "  that 
these  prejudices  are  neither  natural  nor  inveterate,  but  that 
they  have  been  induced  by  the  corrupted  Christianity  of  the 
mediaeval  priesthood,  and  that  they  will  be  removed  when 
Christian  people  become  better  informed  ;  and  if  it  be  neces- 
sary for  me,"  he  says,  "  to  sacrifice  my  own  ease  and  my  own 
credit  in  attempting  to  remove  them,  I  shall  only  suffer  the 
common  lot  of  all  reformers  before  me.  .  .  .  Truth  dreads 
no  scrutiny,  shields  herself  behind  no  breastwork  of  estab- 
lished custom  or  of  respectable  authority,  but  proudly  stands 
upon  her  own  merits.  I  will  not  despair,"  he  continues, 
"  therefore,  of  gaining  the  attention  of  every  lover  of  truth, 
while  I  attempt  to  develop  and  demonstrate  the  laws  of  God 
and  of  Nature  upon  the  important  subjects  of  love  and  mar- 
riage, and  to  apply  those  laws  to  the  two  systems  of  monog- 
amy and  polygamy."  (pp.  23-25.)  As  the  book  is  in  the 
market,  this  letter  need  not  contain  more  extracts  from  it. 

Truth  is  mental  light.  Ignorance  is  mental  darkness. 
John  Robinson  told  the  Pilgrim  Fathers,  upon  their  depart- 
ure from  Holland,  that  he  was  very  confident  that  the  Lord 
had  more  truth  yet  to  break  forth  out  of  his  Holy  Word. 
Into  the  open  minds  of  honest,  unprejudiced  persons,  more 
truth  from  every  object  in  nature,  and  from  every  human 
institution,  is  gradually  received. 

Within  a  few  days  two  letters,  each  incidentally  touching 
the  Mormon  question,  have  come  unsolicited  and  unexpect- 
edly to  me.  The  extracts  from  them  which  I  here  introduce 
are  published  without  the  knowledge  of  their  authors.  But 
though  I  think  that  the  pertinency  and  value  of  their  remarks 
justify  this  use  of  them,  I  do  not  feel  at  liberty  to  mention 
the  names  of  the  writers.  One  is  a  professor  of  medicine, 
and  author  of  philosophical  and  historical  books  of  repute,  in 
a  large  city.  Thus  he  writes :  — 


26 

**  So  far  as  I  speak,  it  shall  be  for  freedom  I  detest  oppression  every- 
where. I  want  mankind  pure  and  happy.  This  can  never  be,  so  long  as 
some  exercise  dominion  over  the  lives  and  hearts  of  others.  Even  now 
France  is  freer  than  America,  and  Russia  is  taking  larger  strides  towards 
popular  rights.  .  .  .  Whatever  we  may  think  of  polygamy,  it  is  the 
world's  practice.  Europe  has  it  at  this  day  in  her  morganatic  marriages, 
and  her  rich  men's  mistresses.  Martin  Luther  sanctioned  it  by  distinct 
approval.  Roman  popes  have  given  dispensations  for  it.  The  Bible,  in 
neither  Testament,  whispers  a  disapproval,  even  by  torture. 

"So  long  as  women  outnumber  the  men,1  and  yet  have  the  same 
rights  and  necessities  in  single  as  in  married  life,  if  they  are  desirous  to 
accept  the  place  of  second  wife  in  preference  to  personal  isolation,  they 
are  the  sole  rightful  judges  in  the  matter. 

"  Every  monogamous  country  is  a  land  of  harlots.  Poverty  as  well  as 
passion  compel  it.  It  is  ill,  I  know,  to  be  a  less-loved  wife;  but  it  is  a 
condition  of  life.  In  every  family,  certain  children  are  less  loved.  In 
our  cities,  one-seventh  of  the  women  live  by  prostitution.  I  do  not  see 
any  harm  to  let  them  have  specific  relations  with  the  men  who  associate 
with  them,  as  offset  against  the  present  sexual  vagrancy. 

"In  the  Buchanan  administration,  the  Mormons  offered,  for  the  sake 
of  peace,  to  remove  to  New  Guinea,  if  the  United  States  Government 
would  convey  them.  But  *  strict  construction '  prevented,  and  a  policy 
was  adopted  to  make  them  and  others  exasperated  all  the  time,  but 
nothing  effected.  It  is  an  issue  between  brothels  and  bigamy." 

The  other  letter  is  from  a  Mormon.  Such  a  person  having 
knowledge,  is  better  qualified  than  one  not  a  Mormon  (other 
things  being  equal)  to  express  an  opinion  of  the  benefits  or 
disadvantages  of  their  system.  He  writes :  — 

1  In  the  State  of  Massachusetts  there  are  about  one  hundred  thousand 
more  females  than  there  are  males.  If  every  man  in  the  State  had  a  wife, 
there  would  remain  thousands  of  women  without  husbands.  The  desire  for 
maternity  is  natural,  on  the  part  of  most,  if  not  of  all  women  of  nubile  age  and 
normal  development.  "  Give  me  children,  or  I  die,"  was  the  despairing  cry  of 
Rachel  to  her  husband  Jacob  (Gen.  xxx.  1).  Every  one  of  these  thousands 
of  unmarried  females  is  entitled,  under  the  Constitution  of  the  State,  to  the 
enjoyment  of  her  natural  right  to  motherhood.  Yet  the  statutes  of  the  State 
enact  imprisonment  or  fine  to  such  ones  as  avail  themselves  of  their  natural 
right  to  motherhood  without  the  intervention  of  an  husband  of  their  own.  In 
such  cases,  the  judicial  upholders  of  those  statutes,  and  the  officials  who 
enforce  them,  are,  in  my  opinion,  morally  and  essentially  more  criminal  than 
are  their  victims.  "  The  Scribes  and  Pharisees  sit  on  Moses'  seat  .  .  .  they 
bind  heavy  burdens,  and  grievous  to  be  borne,  and  lay  them  on  men's  shoul- 
ders "(  Matt,  xxxiii.  2, 4).  "  Woe  unto  you  lawyers  also!  for  ye  lade  men  with 
burdens  grievous  to  be  borne  "  (Luke  xi.  46). 


27 

' 4  Permit  me  to  say  a  few  words  here  respecting  the  attitude  of  myself 
and  my  co-religionists  upon  the  Mormon  question.  Had  sensualism  been 
the  object  of  our  system  of  plural  marriage,  we  could  have  gratified  that 
in  a  much  cheaper  and  popular  way  than  by  marrying  women,  and  taking 
upon  us  the  care  and  responsibility  of  families;  and,  under  tne  attacks 
and  pressure  to  which  we  have  been  subjected,  we  could  easily  (had  that 
been  the  prompting  motive)  have  seized  these  attacks  as  a  sufficient  ex- 
cuse for  turning  off  these  wives  and  children,  and  relieving  ourselves  from 
much  that  is  now  heaped  upon  us.  But  I  am  proud  of  the  loyalty  and 
high  sense  of  honor  of  the  men.  No  member  of  the  church  has  taken 
the  first  step  towards  relieving  himself  of  this  obligation  which  he  and 
his  wife  entered  into  as  solemnly  binding  upon  them  both.  They  may 
be  imprisoned  and  killed;  but  that  many  at  least  are  prepared  for.  We 
sincerely  believe  that  the  Almighty  has  commanded  this  system  for  the 
redemption  of  the  race.  The  prevalent  system  of  marriage  is  a  failure. 
Under  it  both  men  and  women  feel  themselves  forced  to  commit  acts 
which  the  laws  make  crimes.  Woman,  being  the  weaker,  is  the  great 
sufferer.  Thousands  upon  thousands  of  them  are  crushed  under  the 
weight  of  what  is  callecl  a  splendid  civilization.  Lecky,  an  opponent  of 
plural  marriage,  describes  in  his  *  European  Morals  '  at  what  sacrifices  the 
purity  of  the  monogamic  family  circle  is  preserved.  A  reform  is  demanded. 
No  reform  in  such  a  system  can  be  effected  without  sacrifices;  even  blood 
has  been  shed  to  accomplish  less  than  this.  Not  that  we  believe  plural 
marriage  should  become  universal.  There  are  many  who  are  unfit  to  have 
one  wife;  besides  the  equality  of  numbers  between  the  sexes  is  not  in  favor 
of  plural  marriage  being  general.  But  we  desire  to  make  sexual  crime 
impossible,  or  as  nearly  so  as  possible.  If  men  desire  women,  let  them 
bear  all  the  consequences,  —  marry  them,  and  support  the  offspring.  Let 
them  observe  the  physiological  laws,  which  even  the  brutes  observe,  and 
have  no  commerce  during  gestation.  Then  we  shall  have  a  race  with  bet- 
ter control  of  their  passions ;  and  not,  as  now,  too  frequently  born  with 
unbridled  lusts  engendered,  while  in  a  pre-natal  state,  by  the  excesses  of 
their  parents.  Every  woman  has  the  right,  though  frequently  deprived 
of  it  by  law,  to  be  a  wife  and  a  mother.  In  the  large  Atlantic  cities,  of 
the  morals  of  which  I  hear  much  but  know  little,  I  doubt  not  there  are 
hundreds  of  women  who  would  only  be  too  glad  to  be  recognized  publicly 
as  legitimate  wives,  if  it  were  not  unpopular,  rather  than  to  be  secret 
mistresses." 

Thoughtful  and  good  men  of  every  country,  through  all 
ages,  have  cogitated  profoundly,  and  differed  widely,  on 
religion,  social  order,  and  society,  and  on  each  and  every  one 
of  the  principles  that  enter  into  these  matters.  Some  such 


28 

thinkers  and  their  writings  have  comforted  religiously,  and 
strengthened  mentally,  certain  minds  which  in  those  writings 
have  found  relishing  spiritual  aliment.  To  such  ones  the 
writings *and  their  authors  have  been  a  savor  from  life  unto 
life.  But  it  is  also  grievously  true,  that  to  multitudes  of 
other  persons,  everywhere,  and  through  all  time,  they  have 
been  a  savor  from  death  unto  death.  Theologic  differences 
and  persecutions  have  wrought  woes  unnumbered  unto  innu- 
merable myriads  of  honest  men,  women,  and  children.  What 
terrible  spectres  of  cruelty  appear  in  one's  mind  at  the  men- 
tion of  the  Inquisition,  or  of  Smithfield  where  martyrs  were 
burned,  or  of  Salem  where  witches  were  hung ;  or  of  odium 
theologicum  (theological  hatred),  a  hatred  by  theologians  and 
ministers  of  one  sect  towards  those  of  another,  that  surpasses 
all  other  rancor  under  heaven,  possibly  equalled  by  that  of 
devils  damned  in  hell.  It  is  shocking  to  many  lovers  of 
peace,  truth,  justice,  and  freedom,  that  in  the  nineteenth 
century,  and  in  the  United  States  of  America,  prosecutions, 
imprisonments,  and  fines  are  to  be  inflicted,  in  the  name  of 
law  and  order,  and  under  the  supposed  sanction  of  religion, 
upon  thousands  of  good  men  and  women  acknowledged  to  be 
honest,  upright,  industrious  citizens  in  all  their  ways  of  life 
and  labor.  Cannot  this  portentous  mockery,  sure  to  be  re- 
garded by  posterity  as  the  crowning  disgrace  of  the  existing 
religion  and  civilization  of  our  country,  be  dispelled  ?  Scru- 
tinize the  principles  that  are  supposed  to  justify  such  sever- 
ity. Compare  them  with  the  eternal  standards  of  truth  and 
justice.  It  is  true  that  some  of  the  religious  practices  of  the 
Mormons  do  offend  the  opinions  and  prejudices  of  other  social 
circles  and  religious  sects.  Polygamic  marriage,  which  among 
the  Mormons  is  a  civil  and  religious  institution,  as  circum- 
cision is  with  the  Jews,  is  distasteful  to  many  good  and  wor- 
thy people  in  certain  other  parts  of  the  United  States.  But 
it  is  said  that  it  is  more  than  distasteful ;  it  is  insisted  that 
polygamy  violates  a  law,  a  statute  of  the  United  States,  and 
is  therefore  a  "  crime."  Ministers,  editors  of  religious  papers, 
often  make  this  charge,  and  have  thereby  inflamed  the  feel- 


29 

ings  of  their  audiences  against  the  Mormons.     This  charge 
ought  to  be  sifted. 

Is  every  violation  of  a  Congressional  or  State  statute  a 
crime,  and  is  every  such  violator  a  criminal  ?  Were  the  men 
who  came  forth  unharmed  from  Nebuchadnezzar's  burning 
fiery  furnace,  criminals,  because  they  violated  his  decree? 
Was  Daniel  a  criminal  in  not  obeying  an  established  statute 
of  King  Darius  ?  It  was  charged  against  Socrates,  that  he 
corrupted  the  youth ;  against  Jesus,  that  he  blasphemed. 
The  charges  being  proved  to  the  satisfaction  of  their  judges, 
both  of  these  teachers  and  exemplars  of  morality  and  religion 
died  the  deaths  of  criminals.  Was  Roger  Williams  a  crimi- 
nal in  maintaining,  as  he  did,  "  that  any  thing  short  of  un- 
limited toleration  for  all  religious  systems  was  detestable 
persecution  "  ?  For  it  he  was  banished  :  an  act  that  disgraced 
Massachusetts,  and  honored  Rhode  Island,  into  whose  terri- 
tory he  was  welcomed.  Were  the  founders  of  our  Republic 
criminals,  or  patriots,  in  resisting  and  violating  as  they  did 
certain  laws  of  the  English  Parliament?  Are  the  Mormons 
to  be  adjudged  criminals  if  they  do  not  obey  Sect.  5,352  of 
the  Revised  Statutes  of  the  United  States,  which  statute 
makes  every  married  person  who  marries  another  in  a  Ter- 
ritory or  other  place  over  which  the  United  States  have 
jurisdiction,  guilty  of  bigamy  and  punishable  by  fine  and 
imprisonment?  All  these  questions  can  be  clearly  answered. 
A  distinct  conception  of  the  nature  of  "  human  rights  "  and 
of  human  crimes  answers  the  question,  and  solves  the  Mormon 
problem. 

First,  What  is  the  nature  of  human  rights  ?  I  conceive  it 
to  be  a  power,  a  capacity  in  human  beings,  of  acquiring  or 
receiving  sensations,  emotions,  mental  and  spiritual  influ- 
ences. This  power  or  capacity  is  born  in  human  beings,  not 
derived  from  church  or  state,  is  a  part  of  their  nature,  and 
hence  is  natural.  Exercised  in  their  normal  direction,  these 
powers  and  capacities  are  rights,  because  they  are  in  the  lines, 
the  right  lines,  or  direction  of  nature.  Hence  the  normal 
exercise  of  human  powers  or  capacities,  in  acquiring  or  re- 


30 

ceiving  sensations,  emotions,  mental,  spiritual,  and  perhaps 
other  influences,  constitute  natural  human  rights.  It  is  not 
right  for  any  legislature  to  abridge  them,  except  so  far  as  it 
may  be  necessary  to  prevent  their  possessor  from  infringing 
on  the  corresponding  equal  rights  of  other  persons.  An  act 
of  a  sovereign,  or  of  a  legislature  to  curtail  natural  human 
rights,  except  for  that  purpose,  is  itself  a  crime,  and  its  pro- 
moters are  criminals.  Hence,  Nebuchadnezzar,  King  Darius, 
the  judges  of  Socrates  and  of  Jesus,  the  colonial  authorities 
of  Massachusetts,  and  the  English  ministries,  were  criminals, 
not  their  victims. 

An  ancient  moralist  said  1  that  it  was  "  philosophy  which 
taught  the  rights  of  man,  which  are  the  basis  of  human 
society."  Rev.  Dr.  Mark  Hopkins  inquires2  '"whether  rights 
are  not  among  the  most  underlying  general  and  powerful  of 
our  principles  of  action  ?  What  will  a  man  fight  for,  sooner 
than  for  his  rights  ?  What  but  his  rights  ought  he  to  fight 
for?  Our  conception  of  these  comes  in  connection  with 
every  active  principle. 

"  Among  the  first,  if  not  the  very  first,  of  our  moral  ideas 
is  that  of  a  right  to  ourselves  ;  that  is,  of  a  right  to  use 
every  power  we  have  for  its  appropriate  ends ;  and,  when 
that  right  is  interfered  with,  our  nature  is  stirred  to  its  lowest 
depths."  Rev.  Dr.  Francis  Wayland  says,3  "  By  the  consti- 
tution under  which  the  Creator  has  placed  us,  the  rights  of 
man  are  as  truly  rights,  as  the  rights  of  God.  The  violation 
of  the  rights  of  man,  is  as  truly  a  violation  of  right  as  the 
violation  of  the  rights  of  God."  Hence  the  special  —  per- 
haps the  exclusive  —  province  of  human  legislation  is  to 
ascertain  and  to  protect  the  natural  rights  of  men,  women, 
and  children.  To  infringe  upon,  much  more  by  legislation 
practically  to  make  useless,  those  rights,  except  to  protect  the 
same  rights  of  other  persons  from  invasion,  is  a  crime  fraught 
with  unnumbered  and  direful  woes  to  the  State  that  permits 

1  Cicero's  Tusculuin  Questions. 

2  On  Peace  of  Conscience.    Boston  Monday  Lecture  1880-81,  p.  103. 
a  Limitations  of  Human  Responsibility,  p.  66. 


31 

or  acquiesces  in  such  legislation.  A  subsequent  part  of  this 
letter  will  show  that  to  establish  human  rights,  to  protect 
people  in  their  possession  of  them,  and  in  the  enjoyment  of 
the  blessings  of  liberty,  was  the  prime  object  constantly  held 
in  view  by  the  frarners  of  the  Constitution  of  the  United 
States. 

Human  crimes  are  violations,  by  one  or  more  human  beings, 
of  the  natural  rights  in  person  or  property,  of  another,  or 
other  human  beings.  They  are  injuries,  wrongs,  hurts, 
harms,  troubles,  vexations,  or  annoyance,  inflicted,  yes,  per- 
petrated (often  with  a  supposed  good  purpose  in  view),  by 
one  or  more  individuals  upon  another  person.  It  is  impor- 
tant to  notice  that  it  is  the  violation  by  one  party  of  another 
party's  rights  that  constitute  a  "crime."  The  hurts  and 
harms  that  a  person  inflicts  on  himself  are  not  "  crimes; "  they 
may  be  accidents  or  vices,  but  are  not  "  crimes."  Intoxica- 
tion is  not  a  crime :  it  is  a  vice.  It  lacks  the  essential  ele- 
ment which  constitutes  crime  :  that  element  is  an  intentional 
violation  of  another  person  s  rights,  without  sufficient  reason 
for  such  violation.  To  protect  natural  rights,  to  guard  them 
from  invasion,  is  the  only  rightful  plea  for  controlling  another 
person's  rights  of  person,  property,  or  liberty.  Legislators 
can  rightfully  enact  laws  against  crimes,  but  not  against 
vices.  Legislation  against  crimes,  proceeds  on  the  principle 
of  self-protection,  which  is  a  law  of  nature ;  for  it  is  instinc- 
tive for  a  person  to  attempt  to  defend  himself  against  injury. 
Kindness,  arguments,  and  persuasions,  not  punitive  methods, 
are  the  only  ones  that  can  be  rightfully  used  to  reform  vicious 
persons.  Their  rights  of  protection  against  injustice  and 
violence,  are  just  as  sacred  to  them,  as  are  the  rights  of  virtu- 
ous men  against  injustice  and  violence  to  them.  An  invasion 
of  one's  right  of  self-protection,  is  just  as  truly  a  crime  when 
perpetrated  against  a  vicious  man,  as  when  it  is  committed 
against  a  virtuous  man.  In  truth,  it  is  by  so  much  a  greater 
crime  when  done  by  a  legislature  or  a  congress  than  when 
done  by  an  individual,  as  there  is  more  power  in  such  bodies 
to  execute  their  purposes,  than  there  is  in  an  individual. 


32 

The  plural  marriages  of  the  Mormons,  if  there  be  no  force 
nor  fraud  used  in  effecting  or  maintaining  them,  do  not  violate 
the  rights  in  person  or  property  of  other  people,  or  of  any 
person  :  they  are  not  overt  or  "  open  acts  against  peace  and 
good  order."  They  are  not  in  opposition  to  his  social  duties ; 
but  are,  on  the  contrary,  in  the  performance  of  what  the  par- 
ties to  them  most  religiously  believe  to  be  their  social  duties. 
A  marriage  is  a  civil  contract  between  a  man  and  a  woman 
for  social  purposes.  The  parties  thereto  have  each  one  a 
natural  right  to  enter  into  such  contract,  if  thereby  they 
violate  no  other  person's  rights.  In  the  case  of  a  proposed 
second  marriage  of  the  same  man  and  another  woman,  no 
person,  so  far  as  I  can  see,  can  reasonably  object  to  it,  unless 
it  be  the  first  wife.  If  she  do  not  object,  much  more  if  she 
favor  the  proposed  second  marriage,  I  do  not  see  any  reason- 
able objection  to  it.  It  may  not  be  to  my  taste,  nor  to  your 
taste :  but  we  are  not  parties  to  it ;  our  tastes  ought  not  to 
control  other  independent  persons'  marriage  preferences.  It 
certainly  is  against  our  prejudices.  But  prejudices  are  subtle 
enemies.  They  enslave  and  dwarf  every  person  who  enter- 
tains them.  As  I  have  said,  the  parties  to  a  proposed  second 
marriage  have  a  natural  right  to  enter  into  such  contract, 
if  thereby  they  violate  no  other  person's  rights.  No  other 
person,  or  legislature  is  rightfully  entitled  to  oppose,  or  remon- 
strate against  it,  otherwise  than  by  moral  means.  Force  or 
fraud  authorized  or  employed  against  any  of  the  married 
parties,  is  itself  a  crime.  Legislators  who  authorize  it  are,  in 
my  opinion,  greater  criminals,  than  are  the  ignorant,  poverty- 
stricken,  or  money-making  officials  who  execute  their  statutes. 

In  my  younger  days  I  was  a  Baptist ;  for  twenty-five  years 
was  a  member  of  a  Baptist  church.  Some  of  the  'principles 
of  the  Baptists  are  especially  dear  to  me.  Sorry  am  I,  that 
in  the  existing  mad  uproar  against  the  Latter-Day  Saints, 
(for  so  the  Mormons  call  themselves)  certain  Baptist  minis- 
ters and  editors  have  not  learned,  or  perhaps  have  forgotten, 
the  principle  of  "  unlimited  toleration  for  all  religious  sys- 
tems," promulged  by  Roger  Williams  and  President  Way 


33 

land,  —  bright    and   shining   lights  that  they  were,  of  that 
denomination.     Roger  Williams  wrote,1  — 

"  There  goes  many  a  ship  to  sea,  with  many  hundred  souls  in  one 
ship,  whose  weal  and  woe  is  common,  and  is  a  true  picture  of  a  common- 
wealth, or  a  human  combination,  or  society.  It  hath  fallen  out  some- 
times, that  both  Papists  and  Protestants,  Jews  and  Turks,  may  be 
embarked  in  one  ship ;  upon  which  supposal  I  affirm  that  all  the  liberty 
of  conscience  that  ever  I  pleaded  for  turns  upon  these  two  hinges  :  that 
none  of  the  Papists,  Protestants,  Jews,  or  Turks  be  forced  to  come  to 
the  ship's  prayers,  nor  compelled  from  their  own  particular  prayer  or 
worship. ' ' 

Let  it  not  be  forgotten,  nor  misapprehended  that  Mormon 
plural  marriages  are,  by  the  parties  to  them,  revered  and 
held  as  sacred  a  part  of  their  worship,  as  circumcision  is  by 
the  Jews,  or  immersion  or  sprinkling  is  by  Baptists  and  Con- 
gregational ists,  or  as  celibacy  is  by  the  Shakers  and  by  the 
Roman  Catholic  priesthood.  If  a  ship  (in  Roger  Williams's 
day  a  ship  was  of  only  some  few  hundred  tons  burden)  could 
carry  hundreds  of  Papists,  Protestants,  Jews,  and  Turks  on 
a  long  voyage  (the  voyage  of  life  to  most  of  us  is  but  a 
short  one)  without  internal  religious  strifes,  simply  by  these 
different  sects  and  nationalities  mutually  abstaining  from 
persecution  of  one  another,  then  certainly  it  is  not  impossi- 
ble in  the  vast  territory  of  the  United  States  (where  each 
State  is  at  liberty,  without  let,  hinderance,  or  other  restraint 
than  moral  ones,  to  establish  monogamy,  polygamy,  or  any 
other  marriage  institution  that  the  people  of  each  State  may 
respectively  desire)  for  Americans  of  all  creeds,  modes  of 
faith,  and  republican  social  institutions,  to  dwell  together  in 
peace,  harmony,  and  prosperity,  if  they  will  abstain  from  per- 
secution or  violation  of  one  another's  natural  rights. 

"  In  my  Father's  house  are  many  mansions."  For  aught  I 
know  to  the  contrary,  Jesus  may  have  prepared,  among  those 
many  mansions,  a  place  for  the  Mormons. 

Dr.  Wayland,  in  the  section  on  "Persecution  on  account 
of  Religious  Opinions,"  in  his  "  Limitations  of  -Human  Re- 

1  Knowles's  Memoir  of  Roger  Williams,  p.  279. 


34 

sponsibility,"  states  principles  for  the  right  regulation  of 
human  conduct,  which,  applied  to  the  Mormon  problem, 
will,  with  peace  and  justice  to  all  parties,  sects,  and  denomi- 
nations, surely  and  honorably  solve  it.  Those  principles  are 
that  we  are  not  responsible  for  the  religious  opinions  or  prac- 
tices of  our  fellow-men,  and,  whatever  be  our  physical  power, 
we  cannot  rightfully  use  it  to  the  detriment  of  our  neighbor, 
to  accomplish  any  good  whatever,  if  he  does  not  infringe 
upon  our  rights.  "  My  brother,"  he  says,  "  may  be  in  error ; 
but  he  has  the  same  right  to  propagate  his  error  that  I  have 
to  propagate  my  truth.  To  use  any  other  weapons  against 
him  than  arguments  is  persecution,  and  shows  a  selfish  dis- 
position to  invade  the  rights  of  our  neighbors.  The  weapons 
of  Christian  warfare  are  not  carnal,  but  simply  truth  and 
righteousness. 

These  principles,  unswervingly  adhered  to,  will  solve,  to 
the  satisfaction  of  every  person  who  acts  upon  them,  the 
Mormon  problem,  all  temperance,  prohibition,  and  divorce 
questions,  and  other  enigmas  that  sometimes  perplex  legis- 
lators, judges,  ministers,  and  other  intelligent  and  conscien- 
tious people. 

Proximus  ardet  Ucalegon.  If  the  Mormon  house  of  wor- 
ship be  destroyed,  whose  house  will  next  burn  ? 


PART  II. 


CONSTITUTIONAL   AEGUMENT. 


PLEASE  permit  me,  Gentlemen  of  Massachusetts,  now  to 
ask  your  attention  to  the  case  of  Reynolds  vs.  United  States 
(98  United  States  Reports,  Supreme  Court),  argued  and  ad- 
judged in  the  Supreme  Court,  October  term,  1878,  in  which 
case  Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the 
court. 

You  know  (for  some,  if  not  all  of  you  are  lawyers)  that 
certain  cases  in  law  books  are  called  leading  cases  ;  perhaps 
(I  hope  it  is)  because,  amid  the  conflicts  of  human  selfish 
interests  and  prejudices,  they  allure  to  brighter  worlds,  and 
lead  the  way  to  the  eternal  principles  of  truth  and  justice. 
Such  was  the  Sommersett  negro  case,  in  which,  amid  the 
prejudices,  and  social  and  monetary  influences  which  clouded 
it,  Lord  Mansfield  discerned  human  rights,  and  secured 
freedom  to  a  slave.  Coming  time  may  reveal  whether  the 
Reynolds  case  will  be  classed  among  leading  cases,  or  over- 
ruled cases,  —  whether,  in  the  galaxy  of  luminous,  just 
decisions,  that  of  Chief  Justice  Waite's  will  be,  as  Lord 
Mansfield's  was,  a  guiding  star.  No  other  considerations 
than  love  of  liberty,  truth,  and  justice,  and  regard  for  the 
good  name  and  permanent  best  interests  of  our  country,  have 
led  me  to  examine  the  Reynolds  case,  and  address  this  letter 
to  you.  I  find  that  in  it  are  involved  not  only  Mormon  in- 
terests, but  the  American,  the  human  right  of  all  men  to  the 
free  exercise  of  religion.  As  violations  of  this  right  have 

35 


36 

not  unfrequently  kindled  animosities  and  wars,  it  seems  to 
me  that  this  case  has  not,  either  in  the  court  or  elsewhere, 
attracted  the  attention  nor  received  the  discussion  which  its 
importance  merits.  In  what  I  may  say,  I  wish  it  understood 
that  I  desire  to  be  merely  an  amicus  curice;  certainly  I  am 
not  a  partisan. 

In  this  case  the  charge  was  that  the  plaintiff  in  error,  having 
a  wife  living,  married  another,  and  thereby  violated  Sect.  5,352 
of  the  Revised  Statutes  of  the  United  States,  which  statute 
makes  every  married  person  who  marries  another  in  a  Terri- 
tory or  other  place  over  which  the  United  States  have  ex- 
clusive jurisdiction,  guilty  of  bigamy,  and  punishable  by  fine 
and  imprisonment.  To  this  charge  it  was  answered  that  that 
statute  is  unconstitutional,  because  it  is  contrar}^  to,  and  vio- 
lates Article  I.  of  Amendments  to  the  Constitution,  which 
amendment  declares  that  Congress  shall  make  no  law  respect- 
ing an  establishment  of  religion,  or  prohibiting  the  free  exer- 
cise thereof.  The  Supreme  Court  of  the  United  States  have 
decided  that  the  statute  is  constitutional  and  valid ;  and  it  is 
popularly  supposed  that  that  decision  settles  the  matter 
But  "  let  us  consider  the  reason  of  the  case,  for  nothing  is 
law  that  is  not  reason." 

The  opinion  of  the  court  was  delivered  by  Mr.  Chief 
Justice  Waite.  It  is  one  of  the  excellences  of  a  people's 
government,  that  the  acts  of  its  legislators  and  the  decisions 
of  its  judges,  are  open  to  the  examination  and  criticism  of 
every  citizen.  Of  this  privilege,  or  rather  blessing  of  liberty, 
resulting  from  the  constitutional  right  of  freedom  of  speech 
and  press,  I  wish  to  avail  myself,  and  shall  therefore  here 
examine  and  comment  on  certain  parts  of  that  opinion. 

Most  gratifying  to  every  lover  of  civil  and  religious  liberty 
is  its  declaration  that  "  Congress  cannot  pass  a  law  for  the 
government  of  the  Territories,  which  shall  prohibit  the  free 
exercise  of  religion.  The  first  amendmf  it  to  the  Constitu- 
tion expressly  forbids  such  legislation.  Religious  freedom  is 
guaranteed  everywhere  throughout  the  United  States,  so  far 
as  Congressional  interference  is  concerned.  The  question 


37 

to  be  determined,"  says  the  court,  "  is  whether  the  law  now 
under  consideration  [i.e.,  Sect.  5,352]  "  comes  within  this 
prohibition." 

"  The  word  4  religion,'  "  the  court  continues,  "  is  not  defined 
in  the  Constitution.  We  must  go  elsewhere,  therefore,  to 
ascertain  its  meaning ;  and  nowhere  more  appropriately,  we 
think,  than  to  the  history  of  the  times  in  the  midst  of  which 
the  provision  was  adopted.  The  precise  point  of  the  inquiry 
is,  what  is  the  religious  freedom  which  has  been  guaran- 
teed?" (p.  162.) 

The  court,  after  briefly  alluding  to  ancient  Virginia  con- 
troversies arising  from  taxation  for  support  of  particular 
sects,  etc.,  refers  to  a  "  Memorial  and  Remonstrance,"  pre- 
pared by  Mr.  Madison,  in  which  he  demonstrated  "that  reli- 
gion, or  the  duty  we  owe  the  '  Creator,'  was  not  within  the 
cognizance  of  civil  government;"  also  to  an  act  "for  estab- 
lishing religious  freedom,"  drawn  by  Mr.  Jefferson  :  "  In 
the  preamble  of  this  act"  [12  Hening,  Stat.  84], l  the  court 
says  "  religious  freedom  is  defined  ;  "  and,  after  a  recital  that 
"  to  suffer  the  civil  magistrate  to  intrude  his  powers  into  the 
field  of  opinion,  and  to  restrain  the  professions  or  propagation 
of  principles  on  supposition  of  their  ill  tendency,  is  a  danger- 
ous fallacy  which  at  once  destroys  all  religious  liberty,"  it  is 
declared  "  that  it  is  time  enough,  for  the  rightful  purposes  of 
civil  government,  for  its  officers  to  interfere,  when  principles 
break  out  into  overt  actions  against  peace  and  good  order." 
"In  these  two  sentences,"  says  the  Supreme  Court,  uis  found 
the  true  distinction  between  what  properly  belongs  to  the 
church  and  what  to  the  state." 

Is  "  religion "  or  "  religious  freedom "  to  be  cabin'd, 
cribb'd,  confin'd,  bound  in  any  verbal  definition?  Are  only 
such  citizens  to  be  protected  from  Congressional  interfer- 
ence with  their  religious  freedom,  as  believe  religion  to  be 
"  the  duty  we  owe  the  Creator  "  ?  Has  Congress  the  consti- 
tutional power  to  prohibit  the  free  exercise  of  their  religion 
to  citizens  who  believe,  with  Thomas  Paine,  that  "the  world 

1  See  act  in  the  Appendix. 


38 

is  my  country,  to  do  good  my  religion ; "  or  who  believe  with 
that  servant  of  God  and  of  the  Lord  Jesus  Christ,  the  epistle- 
writer  James,  that  pure  and  imdefiled  religion  is  to  visit  the 
fatherless  and  widows  in  their  affliction,  and  to  keep  one's  self 
unspotted  from  the  world;  or  to  other  citizens,  who  do  justly, 
love  mercy,  and  walk  humbly,  each  one  before  his  own  God, 
which  the  prophet  Micah  declared  was  good,  and  the  only 
thing  Jehovah  required  of  man  ? 

Possibly  the  word  "religion  "  was  not  defined  in  the  Con- 
stitution, because  the  word  has  as  many  meanings  as  there 
are  minds  that  think  upon  it.  It  is  too  broad,  too  high,  too 
profound,  too  variform,  too  subtile,  too  spiritual,  to  be  com- 
prehended in  any  network  of  words.  Definition  of  religion 
is  limitation,  restriction,  circumscription  of  religion.  Defini- 
tions of  religion  therefore,  only  include  states,  or  establish 
certain  parts  or  phases  of  religion,  and  thereby  exclude  other 
parts  or  phases  of  it.  Definition  of  religion  is  therefore  both 
"  an  establishment  of  religion  "  and  a  "  prohibiting  the  free 
exercise  thereof,"  respecting  which  the  Constitution  expressly 
declares  Congress  shall  make  no  law.  .  .  .  The  court,  al- 
though it  says  that  "religious  freedom "  is  defined  in  the  act 
draughted  by  Mr.  Jefferson,  does  not  mention  that  definition 
in  its  opinion ;  and  on  examination  of  the  act  I  have  not 
found  it.  The  reader  may  examine  it,  in  the  Appendix  of 
this  pamphlet. 

But  here  I  would  inquire,  is  the  meaning  of  "  the  word 
religion  "  to  be  found  in  "  the  history  of  the  times  in  the 
midst  of  which  the  provision  [i.e.,  first  amendment  to  the 
Constitution]  was  adopted"?  The  question  of  the  constitu- 
tional power  of  Congress  to  legislate  in  respect  to  marriage, 
and  the  social  relations  of  the  people  in  the  Territories  of  the 
United  States,  was  for  the  first  time  Brought  before  the 
Supreme  Court  in  this  case.  What  the  Jountry  expected  of 
that  court,  and  what  it  needs  at  the  present  time,  when  sec- 
tarian madness  rules  the  hour,  and  pygmies  are  perched  on 
Alps,  is  a  luminous  judicial  interpretation  of  the  scope, 
design,  and  breadth  of  "  the  religious  freedom  granted  by 


39 

the  Constitution."  Such  an  exposition,  based  on  the  eternal 
principles  of  truth,  justice,  and  liberty ;  breaking  church 
shackles  from  the  soul,  as  the  Sommersett  negro  case  broke 
the  slaveholder's  manacles  from  his  body,  would  have  made 
it  a  leading  case  fit  to  be  published  beside  that  one  which 
made  illustrious  Lord  Mansfield's  name.  But  the  court,  still 
groping  for  the  meaning  of  "  the  word  religion,"  amid  his- 
toric records,  narrates  that  a  little  more  than  a  year  after  the 
passage  of  Jefferson's  statute  in  the  Virginia  House  of  Dele- 
gates, the  Convention  met  which  prepared  the  Constitution 
of  the  United  States,  but  failed  to  include  in  it  an  express 
declaration  insuring  the  freedom  of  religion.  Subsequently, 
at  the  first  session  of  the  first  Congress,  the  first  amendment 
to  the  Constitution  was  proposed  by  Mr.  Madison,  and 
adopted.  Mr.  Jefferson  afterwards,  in  reply  to  an  address  to 
him  by  a  committee  of  the  Danbury  Baptist  Association  (8 
Jefferson's  Works,  113),  said,  "  Believing  with  you,  that 
religion  is  a  matter  which  lies  solely  between  man  and  his 
God ;  that  he  owes  account  to  none  other  for  his  faith  or  his 
worship ;  that  the  legislative  powers  of  the  Government  reach 
actions  only,  and  not  opinions,  —  I  contemplate  with  sove- 
reign reverence  that  act  of  the  whole  American  people  which 
declared  that  their  legislature  should  make  '  no  law  respect- 
ing an  establishment  of  religion,  or  prohibiting  the  free  exer- 
cise thereof,'  thus  building  a  wall  of  separation  between 
Church  and  State.  Adhering  to  this  expression  of  the 
supreme  will  of  the  nation,  in  behalf  of  the  rights  of  con- 
science, I  shall  see  with  sincere  satisfaction  the  progress  of 
those  sentiments  which  tend  to  restore  man  to  all  his  natural 
rights;  convinced  that  he  has  no  natural  right  in  opposition 
to  his  social  duties."  "  Coming  as  this  does,"  says  the  Su- 
preme Court,  "from  an  acknowledged  leader  of  the  advocates 
of  the  measure,  it  may  be  accepted  almost  as  an  authoritative 
declaration  of  the  scope  and  effect  of  the  amendment  thus 
secured.  Congress  was  deprived  of  all  legislative  power  over 
mere  opinion,  but  was  left  free  to  reach  actions  which  were 
in  violation  of  social  duties  or  subversive  of  good  order." 
(p.  164.) 


40 

Thus  much  of  what  the  court  say  of  the  first  amendment, 
under  the  light  thrown  upon  it  by  Messrs.  Jefferson  and 
Madison  who  originated  and  proposed  it.  It  was  an  amend- 
ment to  the  Constitution. 

But  now,  senators  and  representatives  of  Massachusetts,  it 
is  chiefly  and  all-important  to  bear  in  mind,  and  your  candid 
attention  is  most  earnestly  solicited,  for  the  right  determina- 
tion of  the  whole  case  hinges  upon  it,  —  that  the  expressed 
and  only  purpose  for  which  the  Constitution  was  ordained 
and  established,  so  far  as  the  special  matter  (viz.,  respecting 
an  establishment  of  religion,  or  prohibiting  the  free  exercise 
thereof)  now  under  consideration  is  concerned,  was  "to 
establish  justice,  and  secure  the  blessings  of  liberty."  This 
is  the  purpose  stated  in  the  preamble,  that  sets  forth  the 
intent  of  the  Constitution.  All  the  seven  articles  of  the 
Constitution,  with  their  various  sections,  are  merely  means 
and  modes  of  carrying  into  execution  the  purposes  and 
objects  stated  in  the  preamble,  and  ought  to  be  interpreted 
by,  and  in  accordance  with  the  exact  and  specific  objects  and 
purposes  therein  stated.  "  The  aim  and  object  of  an  instru- 
ment is  essential  in  construing  it,"  says  Lieber  in  his  "  Legal 
and  Political  Hermeneutics  "  (p.  143).  The  preamble  of  the 
Constitution  was  adopted  as  a  solemn  promulgation  of  a  fun- 
damental fact  vital  to  the  character  and  operations  of  the  gov- 
ernment, says  Mr.  Justice  Story  in  his  "  Commentaries  on 
the  Constitution "  (sect.  463).  That  preamble  as  a  key 
opens  the  meaning  of  the  First  Article  of  the  Amend- 
ments. 

The  aim  and  object  of  the  Constitution  was  to  secure  the 
blessings  of  LIBERTY  to  each  and  every  person  of  the  United 
States  then  living,  and  to  each  and  every  one  of  their  pos- 
terity. The  blessings  of  liberty  in  every  department  of  human 
thought  and  action,  without  any  restriction  of  liberty  what- 
ever, with  no  possible  limitation  of  that  liberty,  provided  that 
it  did  not  work  injustice  to  any  other  person  (for  to  establish 
justice  was  another  object  and  aim,  mentioned  in  the  pream- 
ble), were  to  be  secured  to  each  and  every  one  of  the  people 


41 

of  the  United  States,  and  to  each  and  every  one  of  their  pos- 
terity. It  was  to  secure  the  blessings  of  liberty  in  politics, 
in  trade,  in  action,  in  speculation,  in  religion,  and  in  every 
other  conceivable  sphere  of  mind  and  matter  that  human 
beings  can  engage  in,  with  the  single  limitation  of  doing  in- 
justice to  no  one,  that  the  Constitution  was  ordained  and 
established.  Its  purpose  was  not  merely  to  secure  fragments 
of  liberty,  such  as  popes,  bishops,  ministers,  kings,  and  princes 
might  permit  or  dole  out  to  the  people,  that  they  were  to 
possess.  No!  the  representatives  of  the  United  States  in 
their  Declaration  of  Independence  declared  that  all  men 
were  created  equal,  and  were  endowed  with  the  right,  among 
other  rights,  of  the  pursuit  of  happiness.  Illumined  by  this 
light  from  the  Declaration  of  Independence,  it  is  clear  that 
the  purpose,  object,  end,  and  aim  of  the  Constitution  was  to 
secure  to  the  people  of  the  United  States  and  their  posterity, 
to  each  and  every  one  of  them  individually,  all  the  blessings 
of  universal  liberty  in  his  pursuit  of  happiness,  with  no 
limitation  or  restriction  whatever,  save  the  single  one  of  not 
doing  injustice  to  any  one.  Constitutionally,  therefore,  every 
American  is  a  free  man  with  liberty  to  do  all  that  he  may 
wish  to  do  in  his  pursuit  of  his  individual  and  social  happi- 
ness, provided  that  he  do  not  injustice  to  any  person.  This 
liberty  declared,  and  limited  by  avoidance  of  injustice  to  any 
one  (for  "  to  establish  justice  "  was  another  purpose  men- 
tioned in  the  preamble)  coincides  in  meaning  with  the  first 
principle  of  ethical  science  stated  by  Herbert  Spencer  in  his 
"  Social  Statics,  or  the  Conditions  essential  to  Human  Happi- 
ness "  (p.  121)  ;  viz.,  that  "every  man  has  freedom  to  do  all 
that  he  wills,  provided  he  infringes  not  the  equal  freedom  of 
any  other  man,"  a  principle  which  he  declares  to  be  "  a  law 
of  right  social  relationships."  Constitutional  liberty  and  the 
principle  of  ethical  science  are  but  echoes  of  the  whole 
doctrine  of  justice,  which  Justinian  centuries  ago  thus  stated 
in  his  "  Institutes "  (i.  1,3):  Juris  prcecepta  sunt  hcec, 
honeste  vivere,  alter  urn  non  Icedere,  suum  cuique  tribuere. 
(To  live  honestly,  to  hurt  nobody,  to  render  to  every  one 


42 

his  due.)1  "Truth  is  the  summit  of  being,"  says  Emerson. 
"  Justice  is  the  application  of  it  in  affairs."  No  better  policy 
can  guide  any  political  administration  and  party  in  power, 
than  to  do  justice  to  all  classes  and  conditions  of  men, 
especially  to  the  oppressed.  The  Mormons  now  suffer  from 
Sect.  5,352  of  the  United  States  Revised  Statutes,  purposely 
enacted  to  hurt  them,  which  therefore  violates  the  above 
second  principle  of  justice. 

Now,  when  the  Supreme  Court  say  that  Congress  "was 
left  free  to  reach  actions  which  were  in  violation  of  social 
duties,  or  subversive  of  good  order,"  in  my  judgment,  —  and 
I  desire  to  speak  with  proper  deference,  —  it  says  what  the 
Constitution  has  not  authorized  it  to  say.  A  man's  social 
duties  grow  out  of  his  capabilities  and  his  natural  rights. 
His  natural  rights  do  not  spring  from  his  social  duties, 
but  are  inherent  in  and  essential  to  him  as  being  a  man. 
He  can  perform  his  social  duties,  only  as  he  has  capacities 
for  their  performance,  and  by  being  left  in  the  full  and 
unrestrained  possession  and  enjoyment  of  all  his  natural 
rights.  It  may  be  a  man's  and  a  woman's  social  duty  to 
attend  dancing-parties  and  prayer-meetings.  But  whether 
it  is  a  duty  thus  to  do,  they  must  decide  for  themselves.  It 
is  their  exclusive  right  to  decide  it.  Any  statute  of  Congress 
compelling  such  attendance  under  pains  and  penalties,  or 
any  court's  interpretation  of  the  Constitution,  or  of  such 
statute,  to  the  effect  that,  not  attending  such  dancing-parties 
or  prayer-meetings,  they  thereby  violated  social  duties,  or 
subverted  good  order,  would  be  an  infringement  of  their 
natural  rights,  and  would  be  an  act  of  despotism  on  the  part 
of  Congress,  or  of  usurpation  on  the  part  of  the  court  mak- 
ing such  interpretation.  Equally  despotic  would  be  the 
legislative  statute,  and  equally  perverting  would  be  the 
court's  interpretation,  which  would  restrain  the  man  and 

1  Spencer's  First  Principle  of  Ethical  Science,  and  Justinian's  Epitome  of 
Justice,  harmonize  well  with  Confucius's  Reciprocity,  or  Rule  of  Practice  for 
all  one's  life  :  "  What  you  do  not  want  done  to  yourself,  do  not  do  to  others;  " 
and  with  the  precept,  "  Whatsoever  ye  would  that  men  should  do  unto  you 
even  so  do  ye  also  unto  them,"  which  Jesus  said  is  the  law  and  the  prophets. 


43 

woman  from  attending  such  dancing-parties  or  prayer-meet- 
ings, provided  that  by  such  attendance  they  did  injustice  to 
no  one. 

The  Constitution  does  not,  either  in  words  or  by  implica- 
tion, allude  to  "  social  relations,  social  obligations  and  du- 
ties." It  may  be  a  social  duty  for  me  to  enlarge  my  circle 
of  acquaintances,  to  reciprocate  friendly  offices,  and  to  help 
on  Christian  missions,  or  infidel  sciences,  as  I  may  prefer ; 
but  they  are  not  legal  duties,  required  of  me  by  the  Consti- 
tution. The  Congress  or  the  court  that  assumes  to  coerce 
me  in  "  social  relations,  social  obligations  and  duties,"  or  to 
restrain  me  in  the  exercise  of  them,  where  I  do  injustice  to 
no  one,  transcends  its  constitutional  powers,  and  becomes  a 
despot.  The  assumption  of  the  court,  that  the  American 
Government  is  necessarily  required  to  deal  with  the  "  social 
relations  and  social  obligations  and  duties  "  of  the  people,  is 
a  subtle  and  an  enormous  absorption  of  undelegated  power, 
and  is  one  that  should  attract  the  attention  of  all  Americans 
interested  in  preserving  free  institutions  and  the  "  blessings 
of  liberty" 

Not  less  unconstitutional  and  indefensible  is  the  Supreme 
Court's  selection  of  the  words  "  good  order,"  as  a  criterion  of 
the  legislative  power  of  Congress  over  the  actions  and 
natural  rights  of  the  people.  The  words  "  social  deeds  "  and 
"good  order"  have  no  exact,  precise,  and  legal  meaning. 
They  are  indefinite  expressions.  Their  meanings  shift  and 
vary,  and  are  as  many  and  as  diverse  as  are  the  sects,  parti- 
sans, and  people  that  all  over  the  world,  use  these  words. 
"  Order  reigns  in  Warsaw,"  was  the  official  proclamation, 
when  the  capital  city  of  the  Poles  was  crushed  beneath  the 
feet  of  the  Russian  despot.  But  it  was  oppression  and 
slavery  of  the  Poles,  which  was  interpreted  as  "order"  by 
the  Czar.  By  the  evidence  of  the  Mormons,  and  of  many 
other  competent  and  credible  witnesses,  "social  duties"  are 
as  well  performed,  and  as  "  good  order "  exists,  among  the 
Mormons  in  Utah  as  in  any  one  of  the  United  States.  The 
particular  kind  of  "  social  duties,"  and  the  particular  kind 


44 

of  "good  order,"  which  Congress  seeks  to  enforce  upon  and 
among  the  Mormons,  is  as  destructive  of  their  human  rights 
and  of  their  blessings  of  liberty,  as  the  ukase  of  the  Czar 
was  to  the  rights  and  liberties  of  the  Poles.  "  Social  duties 
and  good  order  "  are  words  not  in  the  Constitution.  Its 
framers  put  therein  other  words,  with  exact  and  definite 
meaning;  those  words  are  "justice"  and  "liberty."  "To 
establish  justice,  and  secure  the  blessings  of  liberty  to  ourselves 
and  our  posterity"  was  the  declared  purpose,  object,  end, 
and  aim  of  the  Constitution.  The  words  "  social  duties  and 
good  order "  are  unwarranted,  injected  interpolations,  and 
utterly  subvert  the  meaning  of  that  instrument.  They  open 
the  door  to  unlimited  arbitrary  legislation,  and  are  in  direct 
conflict  with  that  amendment  to  the  Constitution  which 
declares  "that  Congress  shall  make  no  law  respecting  an 
establishment  of  religion,  or  prohibiting  the  free  exercise 
thereof." 

Therefore  I  regard  the  opinion  of  the  Supreme  Court,  that 
Congress  was  left  free  to  reach  actions  which  were  in  viola- 
tion of  "  social  duties  or  subversive  of  good  order "  (said 
actions  being  just),  as  a  violation  of  the  fundamental  princi- 
ples of  the  Constitution,  and  a  usurpation  by  which  the 
court  abridges  the  "blessings  of  liberty"  to  the  people. 

The  court  proceeds,  and  says,  "  Polygamy  has  always  been 
odious  among  the  northern  and  western  nations  of  Europe ; 
and,  until  the  establishment  of  the  Mormon  church,  was 
almost  exclusively  a  feature  of  the  life  of  Asiatic  and  of 
African  people.  From  the  earliest  history  of  England 
polygamy  has  been  treated  as  an  offence  against  society. 
After  the  establishment  of  the  ecclesiastical  courts,  and 
until  the  time  of  James  I.,  it  was  punished  through  the 
establishment  of  those  tribunals." 

To  this  I  answer,  what  the  court  here  says  may  all  be 
true,  and  yet  it  is  not  a  sound  argument,  warranted  by  the 
Constitution,  against  the  Mormon  church  or  its  polygamy. 
Not  only  has  polygamy  been  "  odious,"  but  so  has  democracy 
been  "  odious  "  among  the  northern  and  western  nations  of 


45 

Europe;  but  that  is  no  good  argument  why  democracy 
should  not  exist  in  the  United  States.  Whether  a  matter 
or  an  institution  is  odious  or  not  odious,  is  a  question  of 
taste,  and  not  of  natural  rights.  De  gustibus  non  est  dispu- 
tandum  (there  is  no  disputing  about  tastes),  is  a  maxim  appli- 
cable as  well  in  legal  discussion,  as  in  social  conventionalities. 
Therefore  the  opinion  of  the  northern  and  western  nations 
of  Europe  as  to  the  good  or  bad  taste  of  polygamy,  is  not 
pertinent  in  ascertaining  the  Constitutional  or  "  natural 
rights  "  of  the  Mormons. 

Neither  because  "  polygamy  has  been  treated  as  an  offence 
against  society "  in  England,  and  been  punished  in  its 
"  ecclesiastical  courts,"  does  it  follow  that  it  should  be  so 
treated  in  the  United  States.  The  political  status  of  society 
in  England  is  radically  different  from  the  constitutional 
status  of  society  in  the  United  States.  In  England,  it  has 
developed  from  a  monarchical  and  an  aristocratic  form  of  gov- 
ernment, and  partakes  of  the  characteristics  of  such  govern- 
ments, and  the  English  people  have  only  such  rights  as  have 
been  conceded  or  granted  to  them  by  their  government.  In 
the  United  States,  society  springs  from  democratic  sources, 
and  the  people  here  possess  all  their  natural  rights  except 
such,  and  so  much  concession  of  them  to  the  National  Gov- 
ernment, as  it  was  necessary  for  it  to  possess  in  order  "  to 
establish  justice.  "  It  is  confusion  of  thought  on  the  part  of 
the  court,  to  confound,  as  one  and  the  same  thing,  such 
utterly  different  political  states  of  society,  as  that  of  England, 
and  that  of  the  United  States,  and  to  reason,  that,  because 
"from  the  earliest  history  of  England,  polygamy  has  been 
treated  as  an  offence  against  society,''  therefore  in  the  United 
States  it  should  also  be  treated  as  an  offence  against  society. 

Neither  does  the  fact  that  English  ecclesiastical  courts 
punished  polygamy  add  weight  to  the  opinion  of  the  court. 
The  Constitution  does  not  recognize,  and  knows  nothing  of, 
"  ecclesiastical  courts."  To  escape  from  them,  from  their 
barbarities  and  absurdities,  was  one  purpose  of  the  early  set- 
tlers of  the  colonies,  and  of  the  framers  of  the  Constitution. 


46 

Therefore  ecclesiastical  opinions  and  punishments  of  English 
polygamists,  are  of  no  assistance  in  ascertaining  the  natural 
and  constitutional  rights  of  Mormons,  and  cannot  rightfully 
be  resorted  to,  as  affording  any  constitutional  prohibition  of 
the  free  exercise  of  their  religion,  or  the  exercise  of  their 
natural  rights.  The  court  continues  its  argument,  and  after 
reciting  that  the  statute  of  1  James  I.  (c.  11),  punishing 
polygamy,  had  been  re-enacted  in  the  colonies,  after  the  pas- 
sage of  the  act  establishing  religious  freedom,  and  after  the 
Convention  of  Virginia  had  recommended  as  an  amendment 
to  the  Constitution  of  the  United  States,  the  declaration  in  a 
bill  of  rights  that  "all  men  have  an  equal,  natural,  and 
unalienable  right  to  the  free  exercise  of  religion  according  to 
the  dictates  of  conscience,"  mentions  as  a  significant  fact  that 
on  the  8th  of  December,  1788,  the  legislature  of  that  State 
substantially  enacted  the  statute  of  James  I.  because,  as  re- 
cited in  the  preamble,  "  it  hath  been  doubted  whether  big- 
amy or  polygamy  be  punishable  by  the  laws  of  this  Common- 
wealth." "From  that  day  to  this,"  continues  the  court, 
"  we  think  it  may  safely  be  said  there  has  never  been  a  time 
in  any  State  of  the  Union  when  polygamy  has  not  been  an 
offence  against  society,  cognizable  by  the  civil  courts,  and 
punishable  with  more  or  less  severity.  In  the  face  of  all  this 
evidence,  it  is  impossible  to  believe  that  the  constitutional 
guaranty  of  religious  freedom  was  intended  to  prohibit  legis- 
lation in  respect  to  this  most  important  feature  of  social  life." 

The  first  answer  to  this  reasoning  of  the  Chief  Justice  that 
occurs  to  me,  is  the  same  offered  by  Mr.  Justice  Field,  for 
not  concurring  with  the  majority  of  the  court  in  relation  to 
the  admissibility  of  certain  testimony  offered  in  said  case : 
viz.,  "  the  authorities  cited  by  the  Chief  Justice,  to  sustain  its 
admissibility,  seem  to  me  to  establish  conclusively  the  exact 
reverse." 

For,  the  General  Assembly  of  Virginia  which  enacted  the 
act  for  establishing  religious  freedom  in  1784-85  (12  Hen- 
ings,  Stat.  84),  as  if  foreboding  the  possibility  of  succeeding 
assemblies  attempting  to  narrow  its  operations,  in  their  said 


47 

act  declared  "  that  the  rights  hereby  asserted  "  (viz.,  that  of 
religious  freedom)  "are  of  the  natural  rights  of  mankind, 
and  that  if  any  act  shall  be  hereafter  passed  to  repeal  the 
present,  or  to  narrow  its  operations,  such  act  will  be  an 
infringement  of  natural  right." 

As  State  courts  sometimes  declare  statutes  which  contra- 
vene the  principles  of  their  State  Constitutions,  to  be  void 
and  of  no  effect,  so  I  believe  that  a  Supreme  Court  imbued 
with  the  views  of  the  Virginia  Assembly  of  1784-85,  or  of 
the  liberal-minded  patriots  that  framed  the  Constitution  of 
the  United  States,  would  have  nullified  Sect.  5,352  of  the 
United  States  Revised  Statutes,  and  any  statute  of  a  similar 
character,  when  judicially  brought  before  it;  and  the  case 
itself  would  have  been  a  leading  case,  because  its  decision 
would  have  rested,  not  on  selfish,  sectarian,  and  conflicting 
opinions,  but  on  the  eternal  and  universally  acknowledged 
principles  of  truth  and  JUSTICE. 

II.  Please  reconsider  the  several  parts  "  of  all  this  evi- 
dence," in  whose  face  the  court  say,  "it  is  impossible  to 
believe  that  the  constitutional  guaranty  of  religious  freedom 
was  intended  to  prohibit  legislation  in  respect  to  [polyga- 
my] this  most  important  feature  of  social  life."  These 
parts  are  (1)  A  declaration  in  a  bill  for  establishing  religious 
freedom,  passed  in  the  Virginia  House  of  Delegates,  1785, 
"that  it  is  time  enough,  for  the  rightful  purposes  of  civil 
government,  for  its  officers  to  interfere,  when  principles  break 
out  into  overt  acts  against  peace  and  good  order."  The 
answer  to  this  piece  of  evidence  is,  that  Mormon  polygamy  is 
not  in  its  nature  or  manifestation  an  act  against  peace  and 
good  order.  Mormon  polygamists  are  as  orderly  and  as 
peaceable  as,  perhaps  more  so  than,  are  celibates  or  monoga- 
mists. An  act  of  Congress  declaring  polygamy  to  be  a  crime 
or  an  overt  act  against  peace  and  good  order,  or  a  court's 
interpretation  of  it  as  such,  appears  to  me  to  be,  in  scriptural 
phrase,  framing  mischief  by  a  law. 

(2)  The  second  piece  of  evidence  is  a  remark  in  Mr.  Jef- 
ferson's reply  to  a  committee  of  the  Danbury  Baptist  Asso- 


48 

ciation,  that  "  man  has  no  natural  right  in  opposition  to  his 
social  duties."  The  answer  is  that  Mormons,  in  entering 
into  plural  marriage,  are  not  opposing,  but  are  performing 
what  they  most  sincerely  believe  to  be  both  a  social  and  a 
religious  duty. 

(3)  "  Polygamy  has  always  been  odious  among  the  north- 
ern and  western   nations  of  Europe."     This  argument  has 
herein  already  been  answered,  and,  in  my  opinion,  is  worth- 
less. 

(4)  "  Ecclesiastical  courts  in  England  had  cognizance  of 
polygamy,  and  punished  it."     The  answer  is,  that  ecclesiasti- 
cal courts  never  acquired  jurisdiction  in  this  country.     Their 
action  in  England,  therefore,  is  of  no  legal  efficacy  in  deter- 
mining whether  or  not  Congress  had  jurisdiction  in  respect  to 
polygamy. 

(5)  "  Local  statutes  in  England  and  in  certain  American 
colonies  cognized  and  punished  it."    The  answer  is,  that  such 
statutes,  being  local,  were  not  operative  beyond  the  limits  of 
the  localities  whose  people  enacted  them,  and  cannot  right- 
fully be  used  to  restrict  or  punish  persons  in  another  locality. 

(6)  That  "  there  never  has  been  a  time  in  any  State  of  the 
Union  when  polygamy  has  not  been  an  offence  against  society, 
cognizable  by  the  civil  courts,  and  punishable  with  more  or 
less  severity."     The  answer  is,  that  the  statutes  in  any  State 
of  the  Union  punishing  polygamy  have  been  local,  and  are  of 
no  legal  efficacy  beyond  the  limits  of  such  State,  and  cannot 
be  legally  applied  to  govern  the  people  of  another  State  or 
Territory,  in  their  marriage  relations ;  nor  can  State  statutes 
enacted  to  restrain  religious  freedom,  rightfully  be  quoted  in 
opposition  to  Article  I.  of  Additions  to,  and  Amendments  of 
the   Constitution  of  the   United  States,  which  amendment 
declares  that  "  Congress  shall  make  no  law  respecting  an 
establishment   of  religion   or  prohibiting   the   free   exercise 
thereof."     If  Congressional  or  State  statutes  can  be  cited  as 
authority  in  opposition  to  the  solemnly  ordained  fundamental 
and  established  purposes  and  provisions  of  the  Constitution 
of  the  United  States,  then  these  latter  are  of  no  legal  efficacy. 


49 

The  above  six  arguments  or  pieces  of  evidence  may  be 
acceptable  to  a  pope,  or  to  a  Calvin ;  but  I  cannot  think  they, 
would  have  been  satisfactory  to  George  Washington,  Thomas 
Jefferson,  or  to  Paine,  or  to  Franklin,  or  to  Abner  Kneeland, 
or  to  Theodore  Parker,  or  that  they  will  be  conclusive  to 
multitudes  of  intelligent  living  Americans.  A  rod  of  six 
broken  twigs,  or  a  staff  of  six  rotten  strands,  will  not  comfort 
a  traveller  when  he  walks  amid  doubts  and  shadows  through 
a  dark  valley  of  decision  ;  he  then  may  fear  great  evil. 

But  the  court,  perhaps  not  perfectly  satisfied  with  the 
evidence  whose  hexagonal  face  made  it  "  impossible  for  the 
court  to  believe  that  the  constitutional  guaranty  of  religious 
freedom  was  intended  to  prohibit  legislation  in  respect  to 
polygamy,"  attacks  the  question  from  another,  a  political 
point  of  view,  and,  with  re-enforcements,  argues  that  "  mar- 
riage, while  from  its  very  nature  a  sacred  obligation,  is  never- 
theless in  most  civilized  nations  a  civil  contract,  and  usually 
regulated  by  law."  Herein  is  one  assumption  and  two  state- 
ments. One  is,  that  marriage  is  a  sacred  obligation.  Is  that 
so?  It  was  made  a  sacrament  at  the  Council  of  Trent,  in 
words  which  Rev.  Dr.  Madan  thus  translates :  "  If  any  shall 
say  that  matrimony  is  not  one  of  the  seven  sacraments  insti- 
tuted by  Christ,  and  doth  not  confer  grace,  let  him  be  ac- 
cursed."1 

During  the  conflict  in  England  between  Church  and  State, 
from  time  of  Henry  VIII.  and  subsequently,  marriage  was 
treated  in  the  courts  only  as  a  civil  obligation :  or  contract. 
But  ever  since  then  the  Church,  the  religious  party  and 
their  sympathizers,  in  England  and  the  United  States,  have 
endeavored  to  re-invest  it  with  a  sacred  character.  The  re- 
mark of  the  court  that  it  is  a  "  sacred  obligation  "  shows  that 
their  sympathies  are  with  the  Church  party.  The  Reformers 
treated  it  as  a  purely  civil  obligation  or  contract.  Martin 
Luther  ("Table  Talk,"  p.  306)  said,  "  Matrimonial  questions 

1  Equally  unjust  and  maledictive  appears  to  me  to  be  Sect.  5,352  of  United 
States  Revised  Statutes,  which,  in  effect,  declares:  Let  every  married  manor 
woman  in  a  Territory  who  married  another  be  fined  not  more  than  five  hundred 
dollars,  or  imprisoned  not  more  than  five  years. 


50 

are  temporal  things  pertaining  to  temporal  magistrates.  I 
advise  that  ministers  interfere  not  in  them."  As  for  myself, 
I  believe  that  every  real  obligation  is  so  far  sacred,  that  it 
ought  to  be  honorably  and  strictly,  if  not  generously  per- 
formed. 

The  remark  of  the  court  that  "  marriage  is  in  most  civil- 
ized countries  a  civil  contract  and  usually  regulated  bylaw," 
proceeds  upon  erroneous  assumption  that  the  constitutional 
government  of  the  United  States  is  the  same  in  principle  as 
that  of  governments  "  in  most  civilized  nations,"  whereas  it 
is  their  exact  opposite.  The  American  idea  or  principle  of 
government,  is  that  each  and  every  citizen  is  possessed  of 
natural  rights,  inherent  in  and  born  with  him ;  that  he  has 
liberty  to  exercise  and  enjoy  all  his  natural  rights  in  the  pur- 
suit of  his  individual  or  social  happiness,  without  permission 
or  hinderance  from  any  person  or  government  whatsoever, 
provided  that  he  do  not  thereby  do  injustice  to  any  one.  But 
the  preamble  of  the  Constitution  limits  his  liberty  by  declar- 
ing another  of  its  proposed  objects,  viz:,  "  to  establish  jus- 
tice." Therefore,  subject  to  the  limitation  of  doing  no 
injustice,  every  citizen  in  the  Territories  is  constitutionally 
secured  in  the  blessed  liberty  to  do  whatever  he  may  please 
to  do,  in  order  to  attain  his  individual  or  social  happiness. 
The  blissful,  but  not  an  iniquitous  freedom,  of  enjoying  all 
one's  natural  rights,  is,  as  I  believe,  what  was  intended  by 
the  framers  of  the  Constitution,  in  the  phrase  "  blessings  of 
liberty  "  in  its  preamble.  But  the  idea  or  principle  of  gov- 
ernment, "  in  most  civilized  nations  "  (thus  phrased  by  the 
court),  is  the  feudal  idea  that  "  might  makes  right."  Such 
governments  have  been  more  or  less  despotic  in  their  admin- 
istration of  public  affairs,  because  they  are  despotisms.  Ac- 
cordingly the  people  "in  most  civilized  nations"  have  enjoyed 
only  such  rights  as  have  been  doled  out  or  allowed  to  them 
by  their  rulers.  The  idea  of  natural  rights,  inherent  in,  and 
belonging  to,  every  man,  woman,  and  child,  because  he  or 
she  is  a  man,  woman,  or  child,  is  the  American,  not  the 
feudal  principle.  The  court,  not  recognizing  this  momen- 


51 

tons,  essential,  and  never-to-be-forgotten  difference  between 
the  principle  of  government  "in  most  civilized  nations," 
and  the  American  principle  of  government,  purposely,  or 
otherwise,  but  certainly  erroneously,  takes  the  feudal  princi- 
ple as  its  premise  or  basis  of  argument,  and  thereby  arrives 
at  its  despotic  and  un-American  decision.  It  goes  upon  the 
assumption  that  the  administrative  officers  of  the  United 
States  government,  rule  or  govern  the  people,  as  the  English 
Parliament  rules  the  Irish  people  ;  whereas  theoretically  and 
constitutionally  the  American  administrative  officers  are  the 
servants,  not  the  rulers,  of  the  people,  and  should  take  espe- 
cial care  that  the  rights  of  the  people  are  not  abridged,  or  in 
other  words,  that  the  Commonwealth  receive  no  detriment. 

Prior  to  the  Reformation,  popes,  bishops,  priests,  in  their 
synods  and  councils,  made  decrees,  and  ordained  and  estab- 
lished marriage  laws,  to  which  "most  civilized  nations"  sub- 
mitted. As  before  stated,  the  Council  of  Trent  decreed  that 
if  any  shall  say  that  matrimony  is  not  one  of  the  seven  sacra- 
ments, instituted  by  Christ,  and  doth  not  confer  grace,  let  him 
be  accursed.  In  1530  the  College  of  Bologne  determined  that 
the  Levitical  marriage  law  was  binding  on  infidels  as  well  as 
on  members  of  the  Christian  Church.  But  Henry  VIH., 
being  refused  divorce  by  the  Pope,  divorced  himself  from 
Catherine  of  Aragon,  married  Anne  Boleyn,  and  thus  opened 
the  way  to  the  Reformation  in  England  and  to  the  civil  liber- 
ties now  enjoyed  by  Protestants. 

"  In  most  civilized  nations "  marriage  (in  some  being  a 
sacrament,  and  in  other  nations  a  civil  contract)  is  "  usually 
regulated  by  law,"  because  their  rulers  in  accordance  with 
the  feudal  principle  made  the  law,  and  the  people,  having  no 
liberty  of  choice  in  the  matter,  were  compelled  to  submit  to 
the  law.  But  in  each  and  every  one  of  the  United  States 
marriage  has  been  regulated  by  the  people  of  the  respective 
States,  because  the  people  in  each  State  make  its  laws.  At 
the  present  time,  this  very  year,  it  is  within  the  legal  and 
constitutional  power  of  the  people  of  each  and  every  State  of 
the  Union,  to  ordain  monogamy,  polygamy,  or  either  one  or 


52 

both  of  these  modes  of  social  life,  as  the  legal  marriage  for 
the  people  of  their  respective  States.  Congress  has  no  con- 
stitutional power  to  legislate  for  or  against  such  action.  Any 
law  that  it  might  enact  to  punish  polygamy  in  any  State 
would  be  usurpation  on  the  part  of  Congress.  It  would  be  a 
robbery  of  the  rights  of  the  people,  by  the  servants  of  the 
people.  If  prompted  thereto  by  so-called  religious  considera- 
tions, such  action  from  such  motives  would  prove  that,  that 
religion  preferred  robbery  to  justice ;  and,  if  enforced  by  legal 
process,  would  also  show  that  it  preferred  violence,  and  its 
own  domination,  to  peace,  equality,  arid  liberty  to  the  people 
to  enjoy  their  natural  rights. 

The  court  reasoning  from  its  erroneous  assumption  that 
the  constitutional  government  of  the  United  States  is,  in  its 
nature  and  fundamental  principle,  identical  with  the  nature 
and  principles  of  governments,  "in  most  civilized  nations,"  a 
latent  and  fatal  fallacy  pervading  and  poisoning  every  part 
of  the  court's  opinion,  says  that  upon  marriage,  "society 
may  be  said  to  be  built,  and  out  of  its  fruits  spring  social 
relations  and  social  obligations  and  duties  with  which  gov- 
ernment is  necessarily  required  to  deal."  These  certainly 
are  matters  with  which  despotic  government,  and  the  govern- 
ments of  "most  civilized  nations,"  have  dealt.  But,  as  I 
believe,  the  United  States  Government,  keeping  itself  and 
acting,  within  the  preamble  and  the  purview  of  the  Consti- 
tution, has  no  right  to  deal  with  "  the  social  relations  and 
social  obligations  and  duties "  of  the  people.  These  are 
rights  and  matters  retained  by  the  people,  and  are  not  dele- 
gated to  the  United  States.1 

The  Roman  Catholic  Church,  more  or  less  theocratic  in  its 
supposed  origin,  and  compulsive  in  its  methods,  has  persist- 
ently and  for  ages  endeavored  to  regulate  and  control  mar- 
riage, and  other  social  relations,  not  only  among  its  adher- 
ents, but  wherever  else  the  wide  world  over,  it  could  exercise 
power.  By  terrible  maledictions  and  severe,  penalties,  it 
sought  to  establish  monogamic  marriage  as  the  only  legal 

1  IX.  and  X.  Amendments. 


53 

and  sacred  connubial  relation,  and  by  like  severity  it  en- 
deavored to  suppress  polygamic  marriages.  Allusions  in  the 
preceding  pages  have  touched  upon  its  moral  results,  and 
its  profits  to  the  Church  and  its  ministers. 

But  notwithstanding  the  stupendous  efforts  during  eigh- 
teen hundred  years  of  that  parent  church,  and  of  other 
churches,  which  from  it  as  their  source  have  taken  their 
exclusive,  legal  monogamic  system,  notwithstanding  their 
united  efforts  to  uproot  or  suppress  polygamic  marriages, — 
another  social  system  "built"  upon  polygamic  basis  has  ex- 
isted, and  now  is  in  Asia,  Africa,  and  certain  parts  of  Europe. 
As  demonstrated  by  Rev.  Dr.  Madan,  and  other  authors 
herein  cited,  both  monogamic  and  polygamic  marriages  ex- 
isted among  the  Hebrews.  It  is  a  fact  worthy  of  special 
observation,  that  the  Virgin  Mother  worshipped  by  Roman 
Catholics,  as  the  mother  of  God,  was  a  Hebrew  maiden  and 

that  He 

* '  whose  blessed  feet 

Which  fourteen  hundred  years  ago  were  nailed, 
For  our  advantage,  on  the  bitter  cross,"  — 

now  worshipped  by  most  Protestants  as  the  Son  of  God,  was 
a  child  of  Israel.  Both  Mary  and  Jesus  were  born,  grew  up, 
were  educated,  and  lived  their  lives,  amid  society  whose 
"  religious  beliefs  "  and  "  practices,"  whose  "  social  relations  " 
and  "  social  obligations  and  duties,"  not  simply  tolerated,  but 
were  themselves  the  "fruits  "  of,  the  monogamic  system  and 
of  the  polygamic  system  of  marriage,  coeval  and  co-existing 
in  their  native  land.  The  English  Government  in  India  now 
deals  with  the  sacred  and  social  relations  and  social  obliga- 
tions and  duties  springing  from  polygamic  marriages  as  justly 
and  impartially  as  with  those  generated  by  monogamic  mar- 
riages. 

The  next  argument  of  the  court  in  its  second  assault  on 
the  Mormon  problem  is  in  these  words :  viz.,  "  In  fact,  accord- 
ing as  monogamous  or  polygamous  marriages  are  allowed,  do 
we  find  the  principles  on  which  the  government  of  the  peo- 
ple to  a  greater  or  less  extent  rests.  .  .  .  Professor  Lieber 


54 

says  polygamy  leads  to  the  patriarchal  principle,  which  when 
applied  to  large  communities  fetters  the  people  in  stationary 
despotism,  while  that  principle  cannot  long  exist  in  connec- 
tion with  monogamy.  Chancellor  Kent  observes  that  this 
remark  is  equally  striking  and  profound." 

Four  answers  to,  or  comments  on  this  new  argument,  ad- 
duced by  the  court,  may  fairly  be  made  :  — 

(1)  The  first  is,  that  the  statement  is  an  allegation  of  what 
it  declares  to  be  "  fact,"  which  in  truth  is  mere  assertion.     It 
is  simply  the  court's  opinion  on  a  social  question,  and  not  on 
a  legal  question.    The  opinion  of  the  court  on  legal  questions 
is  supposed  for  the  time  being  to  settle  them.     But  only 
truth  and  justice  can  finally  settle  any  question.     Moreover, 
the  Supreme   Court  has  no  constitutional  power  to   settle 
social  questions.     Individual  members  of  the  court  may  have 
opinions  on  social  questions,  and  may  differ  in  those  opinions 
as  widely  as  other  good  citizens  are  apt  to  differ  on  the  same 
matters.     Their  united  opinion  on  any  social  matter,  which 
does  not  involve  a  legal  question,  is  of  no  more  authority, 
and  is  no  more  binding  on  the  people  of  the  United  States, 
than  is  the  united  opinion,  of  an  equal  number  of  other  intel- 
ligent gentlemen.      Therefore  the  opinion  of  the  Supreme 
Court  on  the  social  effects  of  polygamy  is  not  pertinent  to 
the  case,  and  is  of  no  legal  authority. 

(2)  Another  answer  is  furnished  by  the  statement  itself  of 
Professor  Lieber,  that  polygamy  cannot  long  exist  in  connec- 
tion with  monogamy.     If  that  be  a  truth,  then  let  there  be 
no  legislation  favoring  or  discouraging  either  polygamy  or 
monogamy;   but   let   polygamy  cease   to   exist,  simply   and 
because  (as  Professor  Lieber  and  Chancellor  Kent  perhaps 
mean  in  their  remarks)  the  moral  and  social  influences  of 
monogamy  will  necessitate  the  exit  of  polygamy.    That  is  the 
American,  the  constitutional,  the  moral,  the  Christ-like  and 
apostolic  mode  of  getting  rid  of  a  supposed  evil.     Compul- 
sion is  a  feudal,  a  barbarous,  a  brutal  mode,  frequently  if  not 
always  generating  and  entailing  other  and  perhaps  greater 
evils. 


55 

(3)  Moreover,  if  Sect.  5,352  of  the  United  States  Revised 
Statutes,  and  the  decision  of  the  Supreme  Court  thereon,  are 
passively  and  permanently  submitted  to,  as  law,  by  the  people 
of  the  United  States,  that  submission  of  the  people  will  be 
evidence  that  monogamy,  no  less  than  polygamy,  leads  to  the 
patriarchal   principle    (monogamous   legislators   and    judges 
becoming  the  patriarchs),  and,  applied  to  large  communities, 
fetters  the  people  in  stationary  despotism. 

(4)  The  remark  of  Professor  Lieber  may  have  been  a  true 
inference  from  polygamy  as  it  existed  in  Asiatic  countries 
where  the  government  was  despotic,  and  the  women  were 
slaves.     But  it  should  be  remembered  that  Sect.  4  of  Article 
IV.  of  the  Constitution  provides  that  "the   United  States 
shall  guarantee  to  every  State  in  the  Union  a  republican 
form  of  government."     This  constitutional  provision,  applied 
to  Utah,  makes  any  argument,  drawn  from  the  social  or  polit- 
ical effects  of   Asiatic   polygamy,   inapplicable    to    Mormon 
plural  marriage ;   and  that  it  is  not  conclusive,  is   further 
proved  by  a  remark  of   Lady  Duff  us  Hardy  in   her  recent 
book,  "  Through  Cities  and  Prairie-lands"  (p.  123). 

"  There  is  a  wide  difference  between  the  Mohammedan  and  the  Mor- 
mon  —  the  two  polygamic  nations.  Whereas  the  former  keep  the  women 
in  a  state  of  slavery,  idleness,  and  ignorance,  the  Mormons  give  their 
women  every  possible  advantage  of  education,  and  permit,  nay,  encour- 
age, them  to  take  their  part  in  the  world's  work,  and  in  the  management 
of  affairs  generally. " 

The  court's  next  observation  is,  that  "an  exceptional  col- 
ony of  polygamists  under  an  exceptional  leadership  may  some- 
times exist  without  appearing  to  disturb  the  social  condition 
of  the  people  who  surround  it ;  but  there  cannot  be  a  doubt, 
that,  unless  restricted  by  some  form  of  constitution,  it  is 
within  the  legitimate  scope  and  power  of  every  civil  govern- 
ment to  determine  whether  polygamy  or  monogamy  shall  be 
the  law  of  social  life  under  its  dominion." 

Manifestly,  this  exceptional  colony  of  polygamists,  here 
alluded  to  by  the  court,  —  a  community  which  does  not  dis- 
turb the  social  condition  of  the  people  who  surround  it,  and 


56 

whose  own   social  condition,  as  the  preceding  evidence  of 
Capt.    Codman    and    other   witnesses    proves,   is    peaceful, 
thrifty,  and  moral,  though,  in  its  marriage  system,  not  accord- 
ant with  the  prejudice,  or,  as  Rev.  Dr.  Madan  calls  it,  the 
superstition,  of  other  sects,  —  is  the  Mormon  people.      The 
court's  concession  of  the  tranquillity  of  Mormon  social  order 
seems  to  me  (as  other  authorities  in  this  case  cited  by  the 
Chief  Justice  did  to  Justice  Field)  to  establish  conclusively 
the  exact  reverse  of  the  decision  to  which  the  court  arrived. 
The  question  is  not  whether  it  is  within  the  legitimate  scope 
of  the  powers  of  "every  civil  government,"  but  whether  it 
is  within  the  legitimate,  that  is  the  constitutional,  scope  of 
the  power  of  the  United  States  Government.     Her  govern- 
ment differs  from  every  other  civil  government  (now  or  ever, 
in  all  time,  ever  existing  in  the  wide  world  over)  in  being 
restricted  by  a  written  form   of  constitution   ordained   and 
established  to  establish  justice,  and  secure  the  blessings  of  lib- 
erty to  the  people  of  the  United  States,  and  the  people  are 
constitutionally  under  only  its    dominion.      As  I  have  had 
occasion  hereinbefore  to  say,  so  again  I  insist,  the  reasoning 
of  the  Court  in  this  discussion  throughout,  proceeds  upon  an 
erroneous  conception  of  the  relative  positions  of  the  govern- 
ment and  of  the  people.     Congress,  and  the  executive  and 
judicial  powers  of  the  United  States,  constitutionally  are  not 
governors  to  rule  the  people,  but  are  simply  their  servants, 
to  aid  in  establishing  justice  and  securing  the  blessings  of 
liberty  to  the  people.     Athens,  Sparta,  Rome,  Carthage,  and 
the  people  of  many  other  states,  lost  their  liberties  partly 
through  their  religious  superstition,  and  partly  through  the 
cupidity  and  lust  of  power  of  their  officials.     Very  calam- 
itous will  it  be  for  lovers  of  justice  and  liberty,  if  the  United 
States  of  America  be  another  victim. 

Moreover,  let  it  here  be  remarked,  that  the  only  power 
over  the  Territories  granted  to  Congress  by  the  Constitution, 
is  the  power  mentioned  in  Sect.  2  of  Article  IV. ;  viz.,  "  Con- 
gress shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  rejecting  the  territory  or  oilier  property 


57 

belonging  to  the  United  States."  That  section  gives  power 
to  Congress  to  dispose  of  the  territory  ;  that  is,  to  sell  it, 
give  or  cede  it  away,  or  otherwise  dispose  of  it,  treating  it 
exclusively  as  property,  "  and  to  make  needful  rules  or  regu- 
lations respecting  it,"  regarding  it,  however,  as  property,  and 
as  nothing  more  than  property.  That  section  confers  no 
power  on  Congress  to  make  rules  or  regulations  respecting 
the  people  of  the  Territories.  The  Constitution  left  the  peo- 
ple of  the  Territories,  as  it  did  the  people  of  the  States,  free 
to  establish  their  own  system  of  society,  and  to  develop  their 
own  social  relations  and  obligations  and  duties.  As  confirma- 
tory of  this  view,  let  it  be  observed  that,  in  the  ordinance  of 
Congress  of  July  13,  17 87,  for  the  government  of  the  territory 
of  the  United  States  north-west  of  the  river  Ohio,  it  was  de- 
clared to  be  an  article  of  compact  between  the  original  States, 
and  the  people  and  States  in  said  territory,  a  fundamental 
principle  to  remain  forever  unalterable,  that  "  no  person,  de- 
meaning himself  in  a  peaceable  and  orderly  manner,  should 
ever  be  molested  on  account  of  his  mode  of  worship  or  reli- 
gious sentiments."  (II.  Kent's  Com.,  p.  35,  note.) 

The  Supreme  Court  next  considers  "  whether  those  who 
make  polygamy  a  part  of  their  religion  are  excepted  from  the 
operation  of  the  statute."  It  argues  that  if  they  are  ex- 
cepted, "then  those  who  do  not  make  polygamy  a  part  of 
their  religious  belief  may  be  found  guilty,  and  punished, 
while  those  who  do  must  be  acquitted,  and  go  free.  This 
would  be  introducing  a  new  element  into  criminal  law.  Laws 
are  made  for  the  government  of  actions,  and,  while  they  can- 
not interfere  with  mere  religious  belief  and  opinions,  they 
may  with  practices." 

This  reasoning  of  the  court  and  the  statute  itself  proceeds 
on  assumption  and  premises  identical  with  those  of  despots 
and  feudal  nobles  in  their  arguments  to  justify  their  tyran- 
nies and  oppressions  of  their  dependants.  It  does  not  rest 
on,  and  is  not  deduced  from,  the  American  premise  that  the 
people  have  natural  rights,  and  alone  are  the  source  of  all 
political  power. 


58 

A  remark  of  Mr.  Jefferson  which  the  court  recited,  but 
did  not  emphasize,  was,  that  he  should  see  with  sincere  satis- 
faction the  progress  of  those  sentiments  which  tend  to  restore 
man  to  all  his  natural  rights."  The  word  "restore"  here 
used,  implies  that  previously,  in  Mr.  Jefferson's  opinion,  man 
had  been  deprived  of  all  his  natural  rights.  True  it  was,  the 
people  had  been  robbed  of  them  by  priests,  nobles,  and  the 
feudal  law,  —  the  prime  principle  of  which  law,  that  might 
makes  right,  the  Supreme  Court  now  takes  as  the  ground  of 
its  argument  to  despoil  the  Mormons  of  their  religious  free- 
dom. Good  heavens  !  What  profound  disappointment  and 
blank  despair  would  pervade  his  democratic  soul,  were  Jeffer- 
son to  read  this  opinion  of  the  Supreme  Court !  By  the 
Constitution,  the  people  of  the  United  States  and  their  pos- 
terity, each  and  every  individual  of  them,  is  to  be  secured 
in  the  blessing  and  the  liberty  of  doing  whatever  he  may 
please  to  do,  provided  that  he  do  not  thereby  do  injustice  to 
any  other  person.  Constitutionally,  therefore,  neither  "  those 
who  make  polygam}^  a  part  of  their  religion,"  nor  those  who 
do  not  make  polygamy  a  part  of  their  religious  belief,  "  may 
be  found  guilty  and  punished,"  provided  that  by  their  polyg- 
amy they  have  not  done  injustice  to  any  other  person  or 
persons.  Constitutionally,  therefore,  "  this  would  "  not  ube 
introducing  a  new  element  into  criminal  law."  Constitution- 
ally, therefore,  "  laws  can  be  made  for  the  government  of 
actions,"  but  only  of  such  "actions  "  as  do  injustice  to  any 
person  or  persons.  All  other  laws  of  Congress  are,  therefore", 
unwarranted  by  the  Constitution;  and  they  may  not  consti- 
tutionally interfere,  either  with  religious  belief,  opinions,  or 
practices,  if  such  beliefs,  opinions,  or  practices  do  not  do 
injustice  to  any  person  or  persons. 

The  Supreme  Court  next,  on  the  supposition  "  that  one 
believed  that  human  sacrifices  were  a  necessary  part  of  reli- 
gious worship,"  asks,  "  Would  it  be  seriously  contended  that 
the  civil  government  under  which  he  lived  could  not  interfere 
to  prevent  a  sacrifice?  Or,  if  a  wife  religiously  believed  it 
was  her  duty  to  burn  herself  upon  the  funeral-pile  of  her  dead 


59 

husband,  would  it  be  beyond  the  power  of  civil  government 
to  prevent  her  carrying  her  belief  into  practice  ?  " 

To  these  questions,  the  answers  arising  from  the  principles 
of  the  Constitution  are  as  follows :  viz,,  1.  In  the  supposed 
human  sacrifice,  if  injustice  were  to  be  done  to  the  proposed 
victim,  or  if  he  did  not  voluntarily  consent  to  the  sacrifice, 
then  in  the  Territories,  the  civil  government  of  the  United 
States  could  constitutionally  interfere  to  prevent  a  sacrifice. 
2.  If  a  wife  of  lawful  age  and  of  sound  and  disposing  mind 
and  memory,  religiously  believed  it  to  be  her  duty,  and  de- 
sired, to  burn  herself  upon  the  funeral-pile  of  her  dead  hus- 
band, and  by  such  act  did  no  injustice  to  any  other  person 
or  persons,  then  in  the  Territories  it  would  be  beyond  the 
constitutional  power  of  the  United-States  Government,  to 
prevent  her  carrying  her  belief  into  practice. 

The  court  then  proceed  to  argue,  that  to  permit  a  man  to 
excuse  his  practice  of  plural  marriage  because  of  his  religious 
belief  "  would  be  to  make  the  professed  doctrines  of  religious 
belief,  superior  to  the  law  of  the  land,  and,  in  effect,  to  per- 
mit every  citizen  to  become  a  law  unto  himself."  To  this  I 
answer  that  it  was  exactly  this  consequence  and  this  result 
that  the  provisions  of  the  Constitution  were,  in  my  opinion, 
designed  to  attain  to  and  accomplish :  in  order  that  the  doc- 
trines of  religious  belief,  might  be  (as  the  history  of  Bible 
worthies  and  of  many  Christian  martyrs  shows  they  have 
been)  superior  to  the  unjust  laws  of  the  land ;  and  that  every 
citizen  might  become  a  law  to  himself,  provided  that  such 
religious  belief  and  his  law  to  himself  did  no  injustice  to  any 
person.  Of  such  law  —  but  not  of  unjust  statutes,  enacted 
and  repealed  from  year  to  year,  tumultuous  as  the  waves  and 
shifting  as  sand  —  it  may  be  said,  in  the  memorable  words  of 
Hooker,  "  Of  Law  there  can  be  no  less  acknowledged  than 
that  her  seat  is  the  bosom  of  God,  her  voice  the  harmony  of 
the  world.  All  things  in  heaven  and  earth  do  her  homage ; 
the  very  least  as  feeling  her  care,  and  the  greatest  as  not 
exempted  from  her  power."  "Government  could  exist  only 
in  name  under  such  circumstances,"  adds  the  Supreme  Court ; 


60 

to  which  the  answer  is,  that  government  is  best  that  governs 
least.  To  minimize  to  the  utmost,  governmental  powers, 
simply  undertaking  4<  to  establish  justice "  (for  "  domestic 
tranquillity  "  and  "  the  general  welfare,"  the  other  declared 
purposes  of  the  preamble,  would  follow  as  necessary  conse- 
quences when  justice  was  established),  and  to  secure  the  bless- 
ings of  liberty  to  the  people,  was  the  declared  purpose,  object, 
intention,  end,  aim,  and  view  of  the  Constitution.  Any  inter- 
pretation or  construction  of  that  instrument,  that  enlarges  the 
powers  of  Congress  beyond  the  powers  delegated  to  it  by  the 
Constitution  is,  in  my  opinion,  injustice,  and  robs  the  people 
of  the  States,  and  especially  the  people  of  the  Territories,  of 
their  natural  rights  and  liberties.  If  legislative  powers  had 
been  granted  (by  express  words  or  necessary  implication)  to, 
and  vested  in  Congress,  to  establish  monogamy  or  polygamy, 
or  both  of  these  systems,  and  to  control  or  regulate  the  "  social 
relations  and  social  obligations  and  duties  "  thence  springing 
as  the  "fruits"  of  marriage,  I  can  readily  believe  Sect.  5,352 
of  United  States  Revised  Statutes  to  be  a  legitimate  act  of 
that  granted  power.  At  present  I  consider  the  decision  of 
the  court  upon  it  as  illegitimate  issue,  begotten  by  the  union 
of  usurped  legislative  power,  and  judicial  acquiescence. 

The  court  in  closing  its  opinion  of  this  part  of  the  case 
says,  "  The  breaking  of  the  law  is  a  crime."  In  my  opinion, 
this  statement  is  too  broad  —  too  sweeping.  The  breaking 
of  just  law  is  crime,  but  the  enacting  of  unjust  law  is  also 
crime,  and  the  enforcing  of  unjust  law  is  also  crime,  for  both 
one  and  the  other,  violate  natural,  essential,  inalienable  hu- 
man rights.  Such  rights,  congresses,  legislatures,  and  hu- 
man governments  cannot  create,  and  if  abridged  or  violated, 
except  for  the  single  purpose  of  maintaining  justice,  the 
violators  themselves  are  criminals. 

No  wonder  that  when  legislative  bodies  and  judges  make 
no  discrimination  between  just  statutes  and  unjust  ones,  but 
acknowledge  and  enforce  each  and  all  of  them  as  law^  that 
eminent  lawyers  contemn  the  system,  and  its  profession.  Said 
Henry  F.  Durant,  known  to  some  of  you,  gentlemen  of 


61 

Massachusetts,  as  a  very  successful  lawyer  in  Boston  about 
twenty  years  ago,  afterwards  as  the  founder  of  Wellesley 
Female  College,  —  said  he,  after  his  retirement  from  law  prac- 
tice, to  his  friend  Col.  Thomas  W.  Higginson,1  "Law  is  the 
most  narrowing  and  the  most  degrading  of  all  professions. 
All  human  law  is  a  system  of  fossilized  injustice,  and  the 
habitual  study  of  it  only  demoralizes."  "  But,"  said  Mr.  Hig- 
ginson, wishing  to  draw  him  out,  "  law  has  been  called  the 
noblest  of  the  human  sciences."  "  That  is  utter  nonsense  !  " 
he  exclaimed ;  "  there  is  not  enough  of  thought  or  principle 
in  our  whole  system  of  law  to  occupy  a  man  of  intellect  for 
an  hour;  all  the  rest  is  mere  chicanery  and  injustice." 

Not  wholly  at  variance  with  this  opinion  was  that  of  Rufus 
Choate,  who  said,2  "The  law  —  to  be  a  good  lawyer  is  no 
more  than  to  be  a  good  carpenter.  It  is  a  knack,  —  simply 
running  a  machine." 

I  wish  it  to  be  distinctly  understood,  and  I  here  assert 
it  with  all  possible  emphasis,  that  I  do  not  advocate  polygamy 
nor  the  Mormon  religion.  I  advocate  it  no  more,  and  no  less, 
than  I  would  advocate  the  Roman  Catholic,  or  any  sect  of 
the  Protestant  religion  under  like  circumstances.  I  oppose 
persecution  of  the  Mormons,  as  I  would  oppose  persecution  of 
the  Roman  Catholics,  or  of  any  Protestant  sect.  I  oppose 
Sect.  5,352  of  the  Revised  Statutes  of  the  United  States  just 
as  much  as,  and  no  more  than,  I  would  oppose  any  law  of  Con- 
gress respecting  an  establishment  of  religion,  or  prohibiting 
the  free  exercise  thereof  to  any  existing  or  any  future  sect 
of  religionists.  The  Mormon  bugbear  which  frightens  many 
people  is  polygamy.  Evidence  in  this  letter  shows  that 
monogamic  marriage  is  sometimes  accompanied  by  sore  evils 
both  to  married  and  unmarried  persons.  Intelligent,  consci- 
entious Mormons  say  that  the  prevalent  system  of  marriage 
is  a  failure  in  civilized  nations,  that  a  reform  is  demanded, 
and  that  there  is  an  excess  of  the  female  above  the  male 
population,  and  that  every  woman  has  a  right  to  be  a  wife 

1  See  Boston  Commonwealth,  Oct.  22,  1881. 

2  S.  G.  Brown's  Works  of  Rufus  Cboate,  vol.  i.,  p.  304. 


62 

and  a  mother.  Having  suffered  persecution  in  New  York, 
Ohio,  Missouri,  and  Illinois,  more  than  thirty  years  ago  they 
emigrated  to  Great  Salt  Lake  Valley,  and  there  amid  its 
barren  wastes,  a  thousand  miles  and  more  from  their  oppres- 
sors, made  their  homes  and  reared  their  temple.  After  the 
way  which  their  persecutors  call  a  "  crime,"  "  an  evil,"  an 
"abomination,"  a  "stigma,"  and  a  "stench-heap,"  so  worship 
they  the  God  of  their  fathers,  believing  all  things  which  are 
written  in  the  law  and  the  prophets. 

No  one  has  found  them  stirring  up  crowds,  neither  in 
Christian  churches  nor  Hebrew  synagogues.  They  have 
hope  toward  God,  together  with  Christian  and  Jews,  of  a 
better  life  beyond  the  grave.  In  their  ways  of  life  and  labor, 
they  are  quiet,  inoffensive,  loyal  to  the  government,  temper- 
ate, virtuous,  and  religious.  "  Liberty,"  said  Buckle,  "  is  the 
one  thing  most  essential  to  the  right  development  of  individ- 
uals, and  the  real  grandeur  of  nations.  It  is  the  product  of 
knowledge,  when  knowledge  advances  in  a  healthy  and  regu- 
lar manner ;  but  if,  under  certain  unhappy  circumstances,  it 
is  opposed  by  what  seems  to  be  knowledge,  then,  in  God's 
name,  let  knowledge  perish  and  liberty  be  preserved."  Lib- 
erty is  not  a  means  to  an  end,  but  is  an  end  in  itself.  Un- 
limited liberty  is  the  natural  and  inalienable  right  of  every 
human  being,  so  long  and  so  far  as  he  does  not  trespass  on 
the  co-ordinate  rights  and  liberties  of  others. 

41  For  always  in  thine  eyes,  O  Liberty  ! 
Shines  that  high  light  whereby  the  world  is  saved; 
And,  though  thou  slay  us,  we  will  trust  in  thee." 

Believing,  as  I  sincerely  do,  that  that  part  of  the  opinion 
of  the  Supreme  Court  considered  in  this  letter,  is  utterly  at 
variance  with  the  declared  purpose,  end,  object,  scope,  and 
principles  of  the  Constitution,  and  is  subversive  of  justice  and 
the  blessings  of  liberty,  and  that  Sect.  5,352  of  the  Revised 
Statutes  of  the  United  States  and  the  judgment  of  the 
Supreme  Court  in  said  case  do  prohibit  the  free  exercise  of 
religion  to  the  Mormons,  and  thereby  operate  hurt,  loss, 


63 


harm,  damage,  and  other  injustice  to  the  Mormons,  I  ask 
of  you  gentlemen  of  Massachusetts,  to  use  efforts  to  repeal 
that  section  and  all  other  unjust  and  unconstitutional  acts  in 
the  United  States  statute-book. 

I  am  honestly  and  courteously  yours,  for  truth  and  justice 
and  liberty, 

A  CITIZEN  OF  MASSACHUSETTS. 

FEBRUARY,  1882. 


PART   III. 


APPENDIX. 


I.    CITATIONS  JUSTIFYING  POLYGAMY. 
II.    DR.  FRANKLIN'S  APOLOGUE,  OB  LESSON  OF  RELIGIOUS  TOLERATION. 

III.  LAWS  OF   VIRGINIA,   OCTOBER,   1785,   ICTH  OF   COMMONWEALTH, 

CAP.  XXXIV.     AN  ACT  FOR  ESTABLISHING  RELIGIOUS  FREE- 
DOM. 

IV.  TEXT  OF  so  MUCH  OF  CHIEF  JUSTICE  WAITE'S  OPINION  AS  RE- 

LATES TO  THE  DEFENCE  OF  RELIGIOUS  BELIEF  OR  DUTY. 

MANY  ancient  lovers  of  wisdom,  and  religious  writers, 
justify  polygamy.  Limited  space  allows  reference  to  only  a 
few  of  them. 

"  When  God  permits  a  thing  in  certain  cases,  and  to  certain  per- 
sons,  or  in  regard  to  certain  nations,  it  may  be  inferred,  that  the 
thing  permitted  is  not  evil  in  its  own  nature." 1 

My  space  will  not  permit  me  to  give  at  length  his  interesting 
argument  upon  this  proposition  ;  but  his  logical  conclusion  is  that 
"  polygamy,  therefore,  is  not  in  its  own  nature  evil  and  unlawful." 
In  another  place2  he  says,  "  But  it  cannot  thence  be  inferred  that 
the  thing  [polygamy]  is  evil  in  itself,  according  to  the  law  of 
nature." 

Theodoret  says3  "  that  in  Abraham's  time  polygamy  was  for- 
bidden neither  by  the  law  of  nature,  nor  by  any  written  law." 

St.  Ambrose,  speaking  of  polygamy,  says,  "  That  God,  in  the 
terrestrial  paradise,  approved  of  the  marriage  of  one  with  one ; 
but  without  condemning  the  contrary  practice."  He  then  proceeds 

i  Grotius,  B.  I.,  c.  ii.,  sect.  17.  2  B.  II.,  c.  v.,  seek  9. 

8  Quaest.  XLVIL,  in  Genes. 


65 

to  quote  Sarah's  request  to  Abraham  concerning  Hagar,  and  Abra- 
ham's response  thereto.1 

St.  Chrysostom,  speaking  of  Sarah,  says,  "  She  endeavored  to 
comfort  her  husband  under  her  barrenness,  with  children  b}7  her 
handmaid,  for  such  things  were  not  then  forbidden."  2 

Jn  another  treatise3  the  same  Father  says,  "  Nay,  more  :  the  law 
permitted  a  man  to  have  two  wives  at  the  same  time ;  in  short, 
great  indulgence  was  granted  in  those  and  other  particulars." 

St.  Augustine  says,  "  It  is  objected  against  Jacob,  that  he  had 
four  wives."  To  which  he  answers,  t4  which,  when  a  custom,  was 
not  a  crime."  4 

In  another  of  his  writings  he  speaks  of  the  custom  of  having 
several  wives  at  the  same  time  as  "an  innocent  thing,"  incul- 
pabilis  consuetudo,5  and  observes  that  "  it  was  prohibited  by  no 
law."6 

There  is  another  authority  more  recent,  and,  because  of  its 
author,  will  be  of  weight  to  unprejudiced  citizens.  John  Adams, 
the  second  President  of  the  United  States,  and  one  of  the  most 
illustrious  founders  of  the  Government,  wrote  a  letter  to  Thomas 
Jefferson,  under  date  of  May  16,  1822,  in  which  he  speaks  of 
religious  liberty  in  these  words  : 7  — 

"  I  do  not  like  the  late  resurrection  of  the  Jesuits.  They  have 
a  general  now  in  Russia,  in  correspondence  with  the  Jesuits  in  the 
United  States,  who  are  more  numerous  than  everybody  knows. 
Shall  we  not  have  swarms  of  them  here?  In  as  many  shapes  and 
disguises  as  ever  a  king  of  the  Gypsies  —  Bamfield  Morecarew, 
himself  assumed?  In  the  shape  of  printers,  editors,  writers, 
schoolmasters,  etc.  I  have  lately  read  Pascal's  letter  over  again, 
and  four  volumes  of  the  history  of  the  Jesuits.  If  ever  any  con- 
gregation of  men  could  merit  eternal  perdition  on  earth  and  in 
hell,  according  to  these  historians,  though,  like  Pascal,  true  Cath- 
olics, it  is  this  company  of  Loyola.  Our  system,  however,  of 

1  Lib.  I.,  De  Abraham,  Cap.  IV.    Gratian  has  inserted  this  passage,  and 
another  to  the  same  purpose,  in  the  Canon  Law,  Caus.  XXXII.,  Qujest.  IV., 
C.  III. 

2  Horn,  in  Genes. 

8  On  Virginity,  Cap.  XLIV. 
4  Lib.  XXII.,  contra  Faustura,  Cap.  XL VII. 
6  De  Doctr.  Christ.,  Lib.  III.,  Cap.  XII. 
«  De  Civit.  Dei,  Lib.  XVI.,  Cap.  XXXVIII. 
'  Works  of  Jeff.,  vol.  vi.,  p.  604. 


66 

religious  liberty  must  afford  them  an  asylum.  But  if  they  do  not 
put  the  purity  of  our  elections  to  a  severe  trial,  it  will  be  a 
wonder." 

His  prejudices  against  the  Jesuits  were  as  strong  as  those  of 
the  most  bitter  Mormon-hater  can  be  against  the  people  of  Utah  ; 
but  how  strong  his  sense  of  justice  upon  the  point  of  religious 
freedom  !  They  might  merit  eternal  perdition  on  earth  and  in 
hell,  "but  our  system  of  religious  liberty  must  afford  them  an 
asylum."  These  were  the  sentiments  of  a  statesman  and  true 
lover  of  liberty,  who  subordinated  prejudice  to  principle. 


ABRAHAM     AND     THE     STRANGER:    A     LESSON     OF 
RELIGIOUS   TOLERATION. 

BY  BENJAMIN  FEANKLIN. 

1.  AND  it  came  to  pass  after  these   things   that  Abraham   sat 
in  the  door  of  his  tent  about  the  going  down  of  the  sun. 

2.  And  behold  a  man,  bowed  with  age,  came  from  the  way  of 
the  wilderness,  leaning  on  a  staff. 

3.  And  Abraham  arose,  and  met  him,  and  said  unto  him,  "  Turn 
in,  I  pray  thee,  and  wash  thy  feet,  and  tarry  all  night,  and  thou 
shalt  arise  early  on  the  morrow,  and  go  on  thy  way." 

4.  But  the  man  said,  "  Nay,  for  I  will  abide  under  this  tree." 

5.  And  Abraham  pressed  him  greatly  ;  so  he  turned,  and  they 
went   into  the  tent,  and  Abraham  baked  unleavened  bread,  and 
the}r  did  eat. 

6.  And  when  Abraham  saw  that  the  man  blessed  not  God,  he 
said  unto  him,  "  Wherefore  dost  thou  not  worship  the  most  high 
God,  Creator  of  heaven  and  earth?" 

7.  And  the  man  answered  and  said,  "I  do  not  worship  the  God 
thou  speakest  of,  neither  do  I  call  upon  his  name  ;  for  I  have  made 
to  myself  a  god  which  abideth  alway  in  mine  house,  and  provideth 
me  with  all  things." 

8.  And  Abraham's  zeal  was  kindled  against  the  man,  and  -he 
arose,  and  fell  upon  him,  and  drove  him  forth  with  blows  into  the 
wilderness. 


67 

9.  And  at  midnight  God  called  unto  Abraham,  saying,  "  Abra- 
ham, where  is  the  stranger?  " 

10.  And  Abraham  answered  and  said,  "  Lord,  he  would  not 
worship  thee,  neither  would  he  call  upon  thy  name  ;  therefore  have 
I  driven  him  out  from  before  my  face  into  the  wilderness." 

11.  And  God   said,  "  Have  I  borne  with  him   these   hundred 
ninety  and  eight  years,  and  nourished  him,  notwithstanding  his 
rebellion  against  me ;  and   couldst   not   thou,  that   art   thyself  a 
sinner,  bear  with  him  one  night?  " 

12.  And  Abraham  said,  "Let  not  the  anger  of  the  Lord  wax 
hot   against  his  servant ;  lo,  I  have  sinned  ;  forgive  me,  I  pray 
thee." 

13.  And  Abraham  arose,  and  went  forth  into  the  wilderness, 
and  sought  diligently  for  the  man,  and  found  him,  and  returned 
with  him  to  the  tent;  and,  when  he  had  entreated  him  kindly,  he 
sent  him  awa}r  on  the  morrow  with  gifts. 


LAWS   OF   VIRGINIA,   OCTOBER,    1785,    10TH   OF   COM- 
MONWEALTH,   CAP.    XXXIV. 

AN  ACT  FOR  ESTABLISHING  RELIGIOUS  FREEDOM. 

PREAMBLE  I.  Whereas,  Almighty  God  hath  created  the  mind 
free  ;  that  all  attempts  to  influence  it  by  temporal  punishments  or 
burthens,  or  by  civil  incapacitations,  tend  only  to  beget  habits  of 
hypocris}-  and  meanness,  and  are  a  departure  from  the  plan  of  the 
Holy  Author  of  our  religion,  who  being  Lord  both  of  body  and 
mind,  yet  chose  not  to  propagate  it  by  coercions  on  either,  as  was 
in  his  Almighty  power  to  do  ;  that  the  impious  presumption  of 
legislators  and  rulers,  civil  as  well  as  ecclesiastical,  who,  being 
themselves  but  fallible  and  uninspired  men,  have  assumed  domin- 
ion over  the  faith  of  others,  setting  up  their  own  opinions  and 
modes  of  thinking  as  the  only  true  and  infallible,  and  as  such  en- 
deavoring to  impose  them  on  others,  hath  established  and  main- 
tained false  religions  over  the  greatest  part  of  the  world,  and 
through  all  time  ;  that  to  compel  a  man  to  furnish  contributions  of 
money  for  the  propagation  of  opinions  which  he  disbelieves  is  sin- 
ful and  tyrannical ;  that  even  the  forcing  him  to  support  this  or 


68 

that  teacher  of  his  own  religious  persuasion,  is  depriving  him  of 
the  comfortable  liberty  of  giving  his  contribution  to  the  particular 
pastor  whose  morals  he  would  make  his  pattern,  and  whose  pow- 
ers he  feels  most  persuasive  to  righteousness,  and  is  withdrawing 
from  the  ministry  those  temporary  rewards,  which,  proceeding  from 
an  approbation  of  their  personal  conduct,  are  an  additional  incite- 
ment to  earnest  and  unremitting  labors  for  the  instruction  of  man- 
kind ;  that  our  civil  rights  have  no  dependence  on  our  religious 
opinions  any  more  than  our  opinions  in  physics  or  geometry ;  that 
therefore  the  proscribing  any  citizen  as  unworthy  the  public  confi- 
dence, by  laying  upon  him  an  incapacity  of  being  called  to  offices 
of  trust  and  emolument,  unless  he  profess  this  or  that  religious 
opinion,  is  depriving  him  injuriously  of  those  privileges  and  ad- 
vantages to  which  in  common  with  his  fellow-citizens  he  has  a 
natural  right ;  that  it  tends  only  to  corrupt  the  principles  of  that 
religion  it  is  meant  to  encourage,  by  bribing  with  a  monopoly  of 
Worldly  honors  and  emoluments,  those  who  will  externally  profess 
and  conform  to  it ;  that  though  these  indeed  are  criminal  who  do 
not  withstand  such  temptation,  yet  neither  are  those  innocent  who 
lay  the  bait  in  their  way  ;  that  to  suffer  the  civil  magistrate  to  in- 
trude his  powers  into  the  field  of  opinion,  and  to  restrain  the  pro- 
fession or  propagation  of  principles  on  supposition  of  their  ill 
tendency,  is  a  dangerous  fallac}*,  which  at  once  destroys  all  reli- 
gious liberty,  because  he,  being  of  course  judge  of  that  tendency, 
will  make  his  opinions  the  rule  of  judgment,  and  approve  or  con- 
demn the  sentiments  of  others  only  as  they  shall  square  with  or 
differ  from  his  own  ;  that  it  is  time  enough,  for  the  rightful  pur- 
poses of  civil  government,  for  its  officers  to  interfere,  when  princi- 
ples break  out  into  overt  acts  against  PEACE  and  good  order ;  and, 
finally,  that  truth  is  great  and  will  prevail  if  left  to  herself,  that 
she  is  the  proper  and  sufficient  antagonist  to  error,  and  has  noth- 
ing to  fear  from  the  conflict,  unless  by  human  interpretation  dis- 
armed of  her  natural  weapons,  free  argument  and  debate,  errors 
ceasing  to  be  dangerous  when  it  is  permitted  freely  to  contradict 
them. 

II.  Be  it  enacted  by  the  General  Assembly,  That  no  man  shall 
be  compelled  to  frequent  or  support  any  religious  worship,  place, 
or  ministry  whatsoever,  nor  shall  be  enforced,  restrained,  molested, 
or  burdened  in  his  body  or  goods,  nor  shall  otherwise  suffer  on  ac- 


69 

count  of  his  religious  opinions  or  belief;  but  that  all  men  shall  be 
free  to  profess,  and  by  argument  to  maintain,  their  opinion  in  mat- 
ters of  religion,  and  that  the  same  shall  nowise  diminish,  enlarge, 
or  affect  their  civil  capacities. 

III.  And,  though  we  well  know  that  this  assembl}-,  elected  by 
the  people  for  the  ordinary  purposes  of  legislation  onl\r,  have  no 
power  to  restrain  the  acts  of  succeeding  assemblies,  constituted 
with  powers  equal  to  our  own.  and  therefore  to  declare  this  act  to 
be  irrevocable  would  be  of  no  effect  in  law  ;  yet  we  are  free  to 
declare,  and  do  declare,  that  the  rights  herebj'  asserted  are  of  the 
natural  rights  of  mankind,  and  that  if  any  act  shall  be  hereafter 
passed  to  repeal  the  present,  or  to  narrow  its  operations,  such  act 
will  be  an  infringement  of  natural  rights. 

12  Hening's  Statutes  at  Large,  pp.  84-86. 


TEXT  OF  SO  MUCH  OF  CHIEF  JUSTICE  WAITE'S  OPINION  IN 
REYNOLDS  vs.  UNITED  STATES,  1)8  SUPREME  COURT  U.  S. 
REPORTS,  AS  DISCUSSES  ART.  I.  OF  ADDITIONS  AND  AMEND- 
MENTS TO  THE  CONSTITUTION,  WHICH  ARTICLE  DECLARES 
THAT  "CONGRESS  SHALL  MAKE  NO  LAW  RESPECTING  AN 
ESTABLISHMENT  OF  RELIGION,  OR  PROHIBITING  THE  FREE 
EXERCISE  THEREOF,  OR  ABRIDGING  THE  FREEDOM  OF 
SPEECH  OR  OF  THE  PRESS." 

5.  As  to  the  defence  of  religious  belief  or  duty. 

On  the  trial,  the  plaintiff  in  error,  the  accused,  proved  that  at 
the  time  of  his  alleged  second  marriage  he  was,  and  for  many  years 
before  had  been,  a  member  of  the  Church  of  Jesus  Christ  of  Latter- 
Day  Saints,  commonly  called  the  Mormon  Church,  and  a  believer 
in  its  doctrines;  that  it  was  an  accepted  doctrine  of  that  church, 
"  that  it  was  the  duty  of  male  members  of  said  church,  circum- 
stances permitting,  to  practise  polygamy  ;  .  .  .  that  this  duty  was 
enjoined  by  different  books  which  the  members  of  said  church  be- 
lieved to  be  of  divine  origin,  and  among  others  the  Holy  Bible, 
and  also  that  the  members  of  the  church  believed  that  the  practice 
of  polygamy  was  directly  enjoined  upon  the  male  members  thereof 
by  the  Almighty  God,  in  a  revelation  to  Joseph  Smith,  the  founder 
and  prophet  of  said  church ;  that  the  failing  or  refusing  to  prac- 
tise polygamy  by  such  male  members  of  said  church,  when  circum- 


70 

stances  would  admit,  would  be  punished,  and  that  the  penalty  for 
such  failure  and  refusal  would  be  damnation  in  the  life  to  come." 
He  also  proved  "  that  he  had  received  permission  from  the  recog- 
nized authorities  in  said  church  to  enter  into  polygamous  mar- 
riages ;  .  .  .  that  Daniel  H.  Wells,  one  having  authority  in  said 
church  to  perform  the  marriage  ceremony,  married  the  said  de- 
fendant on  or  about  the  time  the  crime  is  alleged  to  have  been 
committed,  to  some  woman  by  the  name  of  Schofield,  and  that 
such  marriage  ceremony  was  performed  under  and  pursuant  to  the 
doctrines  of  said  church." 

Upon  this  proof  he  asked  the  court  to  instruct  the  jury  that  if 
they  found  from  the  evidence  that  he  "  was  married  as  charged  — 
if  he  was  married  —  in  pursuance  of  and  in  conformity  with  what 
he  believed  at  the  time  to  be  a  religious  duty,  that  the  verdict  must 
be  not  guilty."  This  request  was  refused,  and  the  court  did 
charge  u  that  there  must  have  been  a  criminal  intent,  but  that  if 
the  defendant,  under  the  influence  of  a  religious  belief  that  it  was 
right  —  under  an  inspiration,  if  3-011  please,  that  it  was  right  — 
deliberately  married  a  second  time,  having  a  first  wife  living,  the 
want  of  consciousness  of  evil  intent  —  the  want  of  understanding 
on  his  part  that  he  was  committing  a  crime  —  did  not  excuse  him  ; 
but  the  law  inexorably  in  such  cases  implies  the  criminal  intent." 

Upon  this  charge,  and  refusal  to  charge,  the  question  is  raised 
whether  religious  belief  can  be  accepted  as  a  justification  of  an 
overt  act  made  criminal  by  the  law  of  the  land.  The  inquiry  is 
not  as  to  the  power  of  Congress  to  prescribe  criminal  laws  for  the 
Territories,  but  as  to  the  guilt  of  one  who  knowingly  violates  a  law 
which  has  been  properly  enacted,  if  he  entertains  a  religious  belief 
that  the  law  is  wrong. 

Congress  cannot  pass  a  law  for  the  government  of  the  Territories 
which  shall  prohibit  the  free  exercise  of  religion.  The  first  amend- 
ment to  the  Constitution  expressly  forbids  such  legislation.  Re- 
ligious freedom  is  guaranteed  everywhere  throughout  the  United 
States,  so  far  as  Congressional  interference  is  concerned.  The 
question  to  be  determined  is  whether  the  law  now  under  considera- 
tion comes  within  this  prohibition. 

The  word  "religion"  is  not  defined  in  the  Constitution.  We 
must  go  elsewhere,  therefore,  to  ascertain  its  meaning,  and  no- 
where more  appropriately,  we  think,  than  to  the  history  of  the 


71 

times  in  the  midst  of  which  the  provision  was  adopted.  The 
precise  point  of  the  inquiry  is,  what  is  the  religious  freedom  which 
has  been  guaranteed  ? 

Before  the  adoption  of  the  Constitution  attempts  were  made  in 
some  of  the  Colonies  and  States  to  legislate,  not  only  in  respect  to 
the  establishment  of  religion,  but  in  respect  to  its  doctrines  and 
precepts  as  well.  The  people  were  taxed  against  their  will  for  the 
support  of  religion,  and  sometimes  for  the  support  of  particular 
sects  to  whose  tenets  the}'  could  not  and  did  not  subscribe.  Pun- 
ishments were  prescribed  for  a  failure  to  attend  upon  public  wor- 
ship, and  sometimes  for  entertaining  heretical  opinions.  The 
controversy  upoi\  this  general  subject  was  animated  in  many  of 
the  States,  but  seemed  at  last  to  culminate  in  Virginia.  In  1784 
the  house  of  delegates  of  that  State,  having  under  consideration 
"a  bill  establishing  provision  for  teachers  of  the  Christian  reli- 
gion," postponed  it  until  the  next  session,  and  directed  that  the 
bill  be  published  and  distributed,  and  that  the  people  be  requested 
"  to  signify  their  opinion  respecting  "  the  adoption  of  such  a  bill 
at  the  next  session  of  assembly." 

This  brought  out  a  determined  opposition.  Amongst  others, 
Mr.  Madison  prepared  a  "Memorial  and  Remonstrance,"  which 
was  widely  circulated  and  signed,  and  in  which  he  demonstrated 
"that  religion,  or  the  duty  we  owe  the  Creator,"  was  not  within 
the  cognizance  of  civil  government.  (Semple's  Virginia  Baptists, 
Appendix.)  At  the  next  session  the  proposed  bill  was  not  only  de- 
feated, but  another  "for  establishing  religious  freedom,"  draughted 
by  Mr.  Jefferson  (1  Jeff.  Works,  45  ;  2  Howison's  Hist,  of  Va., 
298),  passed.  In  the  preamble  of  this  act  (12  Hening's  Stat., 
84)  religious  freedom  is  denned  ;  and  after  a  recital  "  that  to  suffer 
the  civil  magistrate  to  intrude  his  powers  into  the  field  of  opinion, 
and  to  restrain  the  profession  or  propagation  of  principles  on  sup- 
position of  their  ill  tendency,  is  a  dangerous  fallacy  which  at  once 
destroys  all  religious  liberty,"  it  is  declared  "  that  it  is  time 
enough,  for  the  rightful  purposes  of  civil  government,  for  its  officers 
to  interfere,  when  principles  break  out  into  overt  acts  against  peace 
and  good  order."  In  these  two  sentences  is  found  the  true  dis- 
tinction between  what  properly  belongs  to  the  Church  and  what  to 
the  State. 

In  a  little  more  than  a  year  after  the  passage  of  this  statute, 


S 

72 

the  convention  met  which  prepared  the  Constitution  of  the  United 
States.    Of  this  convention  Mr.  Jefferson  was  not  a  member,  he  be- 
ing absent  as  minister  to  France.     As  soon  as  he  saw  the  draught 
of  the  Constitution  proposed  for  adoption,  he,  in  a  letter  to  a  friend, 
expressed  his  disappointment  at  the  absence  of  an  express  declara- 
tion insuring -the  freedom  of  religion  (2  Jeff.  Works,  355),  but 
was  willing  to  accept  it  as  it  was,  trusting  that  the  good  sense  and 
honest  intentions  of  the  people  would  bring  about  the  necessary 
alterations    (1    Jeff.    Works,    79).      Five    of   the    States,    while 
adopting   the   Constitution,  proposed  amendments.     Three,  New 
Hampshire,  New  York,  and   Virginia,  included   in  one  form  or 
another  a  declaration  of  religious  freedom  in  th£  changes  they  de- 
sired to  have  made,  as  did  also  North  Carolina,  where  the  Conven- 
tion at  first  declined  to  ratify  the  Constitution  until  the  proposed 
amendments  were  acted  upon.     Accordingly  at  the  first  session  of 
the   first  Congress  the  amendment  now  under  consideration  was 
proposed,  with  others,  by  Mr.  Madison.     It  met  the  views  of  the 
advocates  of  religious  freedom,  and  was  adopted.     Mr.  Jefferson 
afterwards,  in  reply  to  an  address  to  him  by  a  committee  of  the 
Danbury  Baptist  Association   (8  Jeff.  Works,  113),  took  occasion 
to  sa}r,  "Believing  with  you,  that  religion  is  a  matter  which  lies 
solely  between  a  man  and  his  God,  that  he  owes  account  to  none 
other  for  his  faith  or  his  worship,  that  the  legislative  powers  of  the 
Government  reach  actions  only,  and  not  opinions,  I  contemplate 
with  sovereign  reverence  that  act  of  the  whole  American  people 
which  declared  that  their  legislature  should  '  make  no  law  respect- 
ing an  establishment  of  religion,  or  prohibiting  the  free  exercise 
thereof,'  thus  building  a  wall  of  separation  between  Church  and 
State.     Adhering   to  this  expression  of  the  supreme  will  of  the 
nation  in  behalf  of  the  rights  of  conscience,  I  shall  see  with  sincere 
satisfaction  the  progress  of  those  sentiments  which  tend  to  restore 
man  to  all  his  natural  rights,  convinced  he  has  no  natural  right  in 
opposition   to  his  social  duties."     Coming  as  this  cloes  from  an 
acknowledged  leader  of  the  advocates  of  the  measure,  it  may  be 
accepted  almost  as  an  authoritative  declaration  of  the  scope  and 
effect  of  the  amendment  thus  secured.     Congress  was  deprived  of 
all  legislative  power  over  mere  opinion,  but  was  left  free  to  reach 
actions  which  were  in  violation  of  social  duties  or  subversive  of 
good  order. 


73 

Polygamy  has  always  been  odious  among  the  northern  and 
western  nations  of  Europe,  and,  until  the  establishment  of  the 
Mormon  church,  almost  exclusively  a  feature  of  the  life  of  Asiatic 
and  African  people.  At  common  law  the  second  marriage  was 
always  void  (2  Kent's  Com.,  79),  and  from  the  earliest  history  of 
England  polygamy  has  been  treated  as  an  offence  against  society. 
After  the  establishment  of  the  ecclesiastical  courts,  and  until  the 
time  of  James  I.,  it  was  punished  through  the  instrumentality  of 
those  tribunals,  not  merely  because  ecclesiastical  rights  had  been 
violated,  but  because,  upon  the  separation  of  the  ecclesiastical 
courts  from  the  civil,  the  ecclesiastical  were  supposed  to  be  the 
most  appropriate  for  the  trial  of  matrimonial  causes,  and  offences 
against  the  rights  of  marriage,  just  as  they  were  for  testa- 
mentary causes,  and  the  settlement  of  the  estates  of  deceased 
persons. 

By  the  statute  of  1  James  I.,  chap.  11,  the  offence,  if  com- 
mitted in  England  or  Wales,  was  made  punishable  in  the  civil 
courts,  and  the  penalty  was  death.  As  this  statute  was  limited  in 
its  operation  to  England  and  Wales,  it  was  at  a  very  early  period 
re-enacted,  generally  with  some  modifications,  in  all  the  colonies. 
In  connection  with  the  case  we  are  now  considering,  it  is  a  signifi- 
cant fact,  that  on  the  8th  of  December,  1788,  after  the  passage 
of  the  act  establishing  religious  freedom,  and  after  the  convention 
of  Virginia  had  recommended,  as  an  amendment  to  the  Constitu- 
tion of  the  United  States,  the  declaration  in  a  bill  of  rights,  that 
*'  all  men  have  an  equal,  natural,  and  unalienable  right  to  the  free 
exercise  of  religion,  according  to  the  dictates  of  conscience,"  the 
legislature  of  that  State  substantially  enacted  the  statute  of  James 
I.,  death  penalty  included,  because,  as  recited  in  the  preamble, 
u  it  hath  been  doubted  whether  bigan^or  polygamy  be  punishable 
by  the  laws  of  this  Commonwealth."  (12  Hening's  Stat.,  G91.) 
From  that  day  to  this,  we  think  it  may  safely  be  said,  there  never 
has  been  a  time  in  any  State  of  the  Union  when  polygamy  has  not 
been  an  offence  against  society,  cognizable  by  the  civil  courts,  and 
punishable  with  more  or  less  severity.  In  the  face  of  all  this  evi- 
dence, it  is  impossible  to  believe  that  the  constitutional  guaranty 
of  religious  freedom  was  intended  to  prohibit  legislation  in  respect 
to  this  most  important  feature  of  social  life.  Marriage,  while 
from  its  very  nature  a  sacred  obligation,  is  nevertheless,  in  most 


74 

civilized  nations,  a  civil  contract,  and  usually  regulated  by  law.1 
Upon  it  society  may  be  said  to  be  built,  and  out  of  its  fruits  spring 
social  relations  and  social  obligations  and  duties,  with  which  gov- 
ernment is  necessarily  required  to  deal.  In  fact,  according  as 
monogamous  or  polygamous  marriages  are  allowed,  do  we  find  the 
principles  on  which  the  government  of  the  people,  to  a  greater  or 
less  extent,  rests.  Professor  Lieber  says  polygamy  leads  to  the 
patriarchal  principle,  which,  when  applied  to  large  communities, 
fetters  the  people  in  stationary  despotism,  while  that  principle 
cannot  long  exist  in  connection  with  monogamy.  Chancellor  Kent 
observes  that  this  remark  is  equally  striking  and  profound.  (2 
Kent's  Com.,  81,  note  e.)  An  exceptional  colony  of  polygamists, 
under  an  exceptional  leadership,  may  sometimes  exist  for  a  time 
without  appearing  to  disturb  the  social  condition  of  the  people 
who  surround  it ;  but  there  cannot  be  a  doubt  that,  unless 
restricted  by  some  form  of  constitution,  it  is  within  the  legitimate 
scope  of  the  power  of  every  civil  government  to  determine  whether 
polygamy  or  monogamy  shall  be  the  law  of  social  life  under  its 
dominion. 

In  our  opinion,  the  statute  immediately  under  consideration  is 
within  the  legislative  power  of  Congress.  It  is  constitutional  and 
valid  as  prescribing  a  rule  of  action  for  all  those  residing  in  the 
Territories,  and  in  places  over  which  the  United  States  have  ex- 
clusive control.  This  being  so,  the  onl}T  question  which  remains 
is,  whether  those  who  make  polygamy  a  part  of  their  religion  are 
excepted  from  the  operation  of  the  statute.  If  they  are,  then 
those  who  do  not  make  polygamy  a  part  of  their  religious  belief 
may  be  found  guilty  and  punished  ;  while  those  who  do  must  be 
acquitted  and  go  free.  This  would  be  introducing  a  new  element 
into  criminal  law.  Laws  are  made  for  the  government  of  actions, 
and,  while  they  cannot  interfere  with  mere  religious  belief  and 
opinions,  they  may  with  practices.  Suppose  one  religiously  be- 
lieved that  human  sacrifices  were  a  necessary  part  of  religious 
worship,  would  it  be  seriously  contended  that  the  civil  government 
under  which  he  lived  could  not  interfere  to  prevent  a  sacrifice? 
Or,  if  a  wife  religiously  believed  it  was  her  duty  to  burn  herself 

1  In  all  Catholic  countries  marriage  is  a  sacrament,  and  its  obligation  a 
religious  one,  so  that  marriage  in  certain  countries  and  among  certain  people, 
and  among  the  Mormons,  is  a  religious  institution.  —  Note  by  author. 


75 

upon  the  funeral  pile  of  her  dead  husband,  would  it  be  beyond  the 
power  of  the  civil  government  to  prevent  her  carrying  her  belief 
into  practice  ? 

So  here,  as  a  law  of  the  organization  of  society,  under  the  ex- 
clusive dominion  of  the  United  States,  it  has  been  prescribed  that 
plural  marriages  shall  not  be  allowed.  Can  a  man  excuse  his 
practices  to  the  contrary  because  of  his  religious  belief?  To  per- 
mit this,  would  be  to  make  the  professed  doctrines  of  religious 
belief  superior  to  the  law  of  the  land  ;  and,  in  effect,  to  permit 
every  citizen  to  become  a  law  unto  himself.  Government  could 
exist  only  in  name  under  such  circumstances. 

A  criminal  intent  is  a  necessary  element  of  crime,  but  every 
man  is  presumed  to  intend  the  necessary  and  legitimate  conse- 
quences of  what  he  knowingly  does.  Here  the  accused  knew  that 
he  had  been  once  married,  and  tjiat  his  first  wife  was  living.  He 
also  knew  that  his  second  marriage  was  forbidden  by  law.  When, 
therefore,  he  married  the  second  time,  he  is  presumed  to  have 
intended  to  break  the  law.  And  the  breaking  of  the  law  is  the 
crime.  Every  act  necessary  to  constitute  the  crime  was  knowingly 
done,  and  the  crime  therefore  was  knowingly  committed.  Igno- 
rance of  a  fact  may  sometimes  be  taken  as  evidence  of  a  want  of 
criminal  intent,  but  not  ignorance  of  the  law.  The  only  defence 
of  the  accused  in  this  case  is  his  belief  that  the  law  ought  not  to 
have  been  enacted.  It  matters  not  that  his  belief  was  a  part  of 
his  professed  religion,  it  was  still  belief,  and  belief  only. 

In  Regina  v.  Wagstaff  (10  Cox  Crim.  Cases,  531),  the  parents 
of  a  sick  child,  who  omitted  to  call  in  medical  attendance  because 
of  their  religious  belief  that  what  they  did  for  its  cure  would  be 
effective,  were  held  not  to  be  guilty  of  man-slaughter,  while  it  was 
said  the  contrary  would  have  been  the  result  if  the  child  had  actu- 
ally been  starved  to  death  by  the  parents  under  the  notion  that  it 
was  their  religious  duty  to  abstain  from  giving  it  food.  But  when 
the  offence  consists  of  a  positive  act,  which  is  knowingly  done,  it 
would  be  dangerous  to  hold  that  the  offender  might  escape  punish- 
ment because  he  religiously  believed  the  law  which  he  had  broken 
ought  never  to  have  been  made.  No  case,  we  believe,  can  be 
found  that  has  gone  so  far. 

6.  As  to  that  part  of  the  charge  which  directed  the  attention 
of  the  juiy  to  the  consequences  of  polygamy. 


76 

The  passage  complained  of  is  as  follows :  "  I  think  it  not  im- 
proper, in  the  discharge  of  your  duties  in  this  case,  that  you 
should  consider  what  are  to  be  the  consequences  to  the  innocent 
victims  of  this  delusion.  As  this  contest  goes  on  they  multiply, 
and  there  are  pure-minded  women,  and  there  are  innocent  children 
—  innocent  in  a  sense  even  beyond  the  degree  of  the  innocence  of 
childhood  itself.  These  are  to  be  the  sufferers  ;  and  as  jurors  fail 
to  do  their  duty,  and  as  these  cases  come  up  in  the  Territory  of 
Utah,  just  so  do  these  victims  multiply  and  spread  themselves  over 
the  land." 

While  every  appeal  by  the  court  to  the  passions  or  the  preju- 
dices of  a  jury  should  be  promptly  rebuked,  and  while  it  is  the 
imperative  duty  of  a  reviewing  court  to  take  care  that  wrong  is 
not  done  in  this  way,  we  see  no  just  cause  for  complaint  in  this 
case.  Congress,  in  1862  (12  Stat.,  501),  saw  fit  to  make  bigamy 
a  crime  in  the  Territories.  This  was  done  because  of  the  evil 
consequences  that  were  supposed  to  flow  from  plural  marriages. 
All  the  court  did  was  to  call  the  attention  of  the  jury  to  the 
peculiar  character  of  the  crime  for  which  the  accused  was  on  trial, 
and  to  remind  them  of  the  duty  the3T  had  to  perform.  There  was 
no  appeal  to  the  passions  ;  no  instigation  of  prejudice.  Upon  the 
showing  made  by  the  accused  himself,  he  was  guilty  of  a  violation 
of  the  law  under  which  he  had  been  indicted,  and  the  effort  of  the 
court  seems  to  have  been,  not  to  withdraw  the  minds  of  the  jury 
from  the  issues  to  be  tried,  but  to  bring  them  to  it ;  not  to  make 
them  partial,  but  to  keep  them  impartial. 

Upon  a  careful  consideration  of  the  whole  case,  we  are  satisfied 
that  no  error  was  committed  by  the  court  below,  and  the  judgment 
is  consequently  affirmed. 


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